Navigating Uncertain Times: Friday Roundup
Friday June 16, 2017
Keeping DACA Discarding DAPA
U.S. Department of Homeland Security Secretary John Kelly
issued a new Memorandum yesterday that rescinded a prior U.S. Dept. of Homeland
Security Memo that provided protection for the parents of U.S. citizens who
would otherwise be subject to removal from the U.S. That same Memo also expanded the Deferred
Action for Childhood Arrivals program, (‘DACA’). A Federal District Court in Texas enjoined
implementation of this Memo, so essentially, the provisions that the U.S. Dept.
of Homeland Security has now rescinded were never implemented to begin with.
Understanding what this specifically means can create
confusion. So let’s break it down
chronologically:
First, on June 15, 2012, the U.S. Dept. of Homeland Security
issued a Memorandum that provided protection from removal and work
authorization for children who arrived in the U.S. under the age of 16 before
June 15, 2007 and were in the United States without authorization on June 15,
2012. This initiative, known as ‘DACA’, also permitted such persons to
apply for work authorization that would be valid for 2 years.
Then, on November 20, 2014, the U.S. Dept. of Homeland
Security issued a second Memorandum that provided protection from removal and
work authorization for the parents of
certain U.S. Citizens or Lawful Permanent Residents. (To be clear, these are not necessarily the
parents of DACA recipients; these are the parents of children who are in the
U.S. either as U.S. Citizens or ‘green card’ holders.) These parents were eligible for protection
from removal and work authorization if they had been residing in the U.S. since
January 1, 2010 and were in the United States without authorization on November
20, 2014. This provision, known as ‘DAPA’, also permitted such persons to apply
for work authorization. In addition,
this November 20, 2014 also extended the authorized period of deferred action
and work authorization of DACA recipients from 2-year increments to 3-year
increments.
This Memo was blocked from ever being implemented by a
lawsuit filed by 26 states in December of 2014.
The case blocking this Memo, Texas
v. United States, is the case you might remember having gone to the
U.S. Supreme Court last year. Because
there were only 8 U.S. Supreme Court Justices at the time, the U.S. Supreme
Court decision was a tie – 4:4 – so the lower court ruling enjoining the Obama
administration from implementing the Memo remained in effect.
Furthermore, because this Memo that was the subject of the
lawsuit has now been rescinded, the case is now moot.
But significantly, the original Memorandum – the June 15,
2012 Memo establishing DACA benefits – was not rescinded and remains in
effect. In other words, the DACA program
is still alive and kicking…for now.
Have a nice weekend,
HS&D Immigration
