CRS Reports & Analysis
Legal Sidebar
The End of the Deferred Action for Childhood Arrivals
Program: Some Immediate Takeaways
09/08/2017
On September 5, 2017, the Trump Administration announced that the Deferred Action for Childhood Arrivals (DACA)
program would be phased out over a six-month period. Established in 2012 under the Obama Administration, DACA
permits qualifying unlawfully present aliens who came to the United States as children to obtain a form of relief known
as
deferred action and, typically, work authorization for a renewable two-year period. While DACA provides for the
deferral of any immigration enforcement action (e.g., removal) against a relief recipient, it does not confer any legal
immigration status upon relief recipients.
In 2015, a group of states and government officials obtained a preliminary injunction preventing implementation of a
2014 expansion of DACA and a related Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA)
initiative. The U.S. Court of Appeals for the Fifth Circuit affirmed the injunction and an equally divided
Supreme Court
upheld this decision without opinion. In June 2017, prior to the district court rendering a final decision
on the challenge to the lawfulness of DAPA and the DACA expansion, the Department of Homeland Security (DHS)
largely rescinded the memorandums authorizing these initiatives, but announced that the original DACA program “will
remain in effect.” Possibly prompted by the plaintiffs’ notice that they would likely amend their complaint to bring a
challenge to the original DACA program, when Attorney General Sessions publicly announced the wind-down of
DACA, he declared that the initiative “is vulnerable to the same legal and constitutional challenges that the courts
recognized with the DAPA program.”
Below are a few immediate takeaways from the announcement.
Are DACA recipients now subject to removal? Although the Trump Administration announced a wind- down of the
DACA program, including by generally ending its processing of new requests for DACA relief, the Administration
indicated that it would delay termination of the program for six months to give Congress a
window to consider
legislation allowing DACA recipients to remain in the United States. In addition, the Department of Homeland Security
(DHS) announced that it will not terminate previous DACA grants for the duration of their validity periods, and will
consider during the six-month wind-down period certain DACA requests that are filed by specified deadlines.
Consequently, the announced wind-down contemplates that current DACA recipients could remain in the United States
for the remainder of time authorized by their previous DACA grants and renewals.
Upon the expiration of their period of relief, DACA recipients generally could be subject to removal on account of their
presence in the United States without legal authorization. The Trump Administration, however, indicated in January its
intent to prioritize immigration enforcement resources towards the removal of aliens who have committed crimes;
engaged in fraud or willful misrepresentation; abused any public benefits program; pose a risk to public safety or
national security; or are subject to a “final order of removal, but have not complied with their legal obligation to depart
the United States.” Many DACA recipients would not fall under these removal priorities (indeed, DACA’s eligibility
requirements bar aliens convicted of certain offenses or who pose a threat to the public or national security from
obtaining relief). However, DACA recipients who were subject to a final order of removal before obtaining relief might
be deemed, at least in some cases, to be a priority for removal if they do not comply “with their legal obligation to
depart” the country once their deferred action status is terminated.
Provided that DACA relief is terminated, some former recipients may nevertheless meet certain statutory requirements
for other forms of relief, including asylum,
withholding of removal, cancellation of removal, adjustment of status, and
Temporary Protected Status. Eligibility for these forms of relief depends on an alien’s particular circumstance, however,
and most likely would not be available to many DACA recipients.
Will information about DACA recipients be used for immigration enforcement purposes? On the same day as the
DACA wind-down announcement was made, DHS indicated that information in DACA applications will not be
provided to the immigration enforcement components of DHS for enforcement purposes unless the DACA recipient
meets certain criteria (e.g., has engaged in fraud or specified kinds of criminal activity) or presents a risk to national
security or public safety. DHS, however, has advised DACA recipients that this policy “may be modified, superseded,
or rescinded at any time without notice, [and] is not intended to, does not, and may not be relied upon to create any right
or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”
This policy largely mirrors that stated policy of DHS since DACA was initiated in 2012, including in instructions to
applicants requesting consideration for DACA relief.
If DACA is terminated, can DACA recipients still receive deferred action? When announcing the phase-out of
DACA, Attorney General Sessions characterized it as “an unconstitutional exercise of authority by the Executive” (a
conclusion that departed from the earlier view of the Justice Department). But the Executive has not indicated any
revision to its longstanding position that it retains the authority to grant deferred action to aliens on a case-by-case basis
as an exercise of
prosecutorial discretion. The establishment of the large-scale DACA initiative did not end DHS’s
practice of granting deferred action in other circumstances. An alien who has received deferred action is legally
permitted to remain in the United States during the deferred action period and, by regulations, may be eligible to receive
work authorization. As is the case with deferred action granted through the DACA program, however, a grant of
deferred action in a less programmatic manner does not confer any legal immigration status on the alien. DHS also has
the discretion to terminate or renew deferred action at any time.
Can DACA recipients continue to receive work authorization? As noted above, DHS has indicated that it will not
terminate previous grants of DACA and employment authorization for the duration of their validity periods. In addition,
DHS has indicated that it will continue to adjudicate initial requests for DACA and associated applications for
employment authorization that were filed by September 5, 2017 (but the agency will not accept first-time requests for
DACA and employment authorization filed
after that date). DHS will also adjudicate DACA
renewal requests and
associated applications for employment authorization from current recipients that were filed by September 5, 2017. And
in the case of current DACA recipients whose benefits will expire between September 5, 2017 and March 5, 2018, DHS
will adjudicate requests to renew DACA and employment authorization if they are filed by October 5, 2017.
Can DACA recipients still travel outside of the United States? In the past, DHS has adjudicated applications for
advance parole to DACA recipients who sought
travel abroad for emergency, educational, or employment reasons. In
phasing out DACA, DHS has announced that it will not approve new applications for advance parole, but will
“generally honor the stated validity period for previously approved applications.”
Is the decision to rescind DACA susceptible to legal challenge? On September 6, 2017, fifteen states and the District
of Columbia filed a lawsuit in the Eastern District of New York challenging the Trump Administration’s decision to
wind down the DACA program. Specifically, the plaintiffs allege that the decision violates the Administrative
Procedure Act because it is “arbitrary and capricious,” and DHS did not go through the notice and comment procedures
for proposed rulemaking before it made its decision.
Alternatively, the plaintiffs argue that the DACA decision violates due process because the government has provided no
“concrete assurances” that it will not use the information from DACA applications for immigration enforcement
purposes; and that the decision violates equal protection by discriminating against Mexican nationals who comprise a
substantial portion of DACA recipients. Plaintiffs also claim that the DACA decision violates the Regulatory Flexibility
Act because DHS did not consider the economic impact on businesses that the DACA rescission would allegedly have.
Further analysis of these challenges will be forthcoming. (Note: Shortly before this Sidebar was published, both
the Regents of the University of California and University of California President Janet Napolitano
filed suit
challenging the DACA wind-down on similar grounds as the suit described above; while suing in her official capacity as
university president, Napolitano had, in her former position as Secretary of DHS, issued the memorandum authorizing
the DACA initiative.)
What can Congress do? As noted above, the Trump Administration indicated that it planned to delay complete
termination of the DACA program to give Congress the opportunity to consider legislation that would permit DACA
beneficiaries to remain in the United States lawfully. In previous years, a number of
bills have been introduced and, in
some cases, considered, that would have allowed unlawfully present aliens who came to the United States at a young
age to adjust to a legal immigration status (similar bills have been introduced in the current Congress). But thus far
Congress has chosen not to act on such legislation. And it remains to be seen whether or how Congress may respond to
the Administration’s invitation to consider legislation affording DACA recipients with legal status. Moreover, even if
Members of Congress believe that legislation is appropriate to enable DACA recipients to remain in the United States,
the nature of the rights and privileges that might be conferred by such legislation – e.g., whether or not persons granted
statutory relief should receive legal immigration status or be eligible for public benefits – could be subject to differing
views and debate.
Posted at 09/08/2017 03:35 PM