Termination of the
DACA Program
Like the slow progression of a
hurricane expected to make landfall, the Trump Administration today finally
confirmed what had been anticipated for a number of months: the ‘rescission’ of the Deferred Action for
Childhood Arrivals, or ‘DACA’, program.
So what does this actually mean?
It could be worse.
Let’s start here: What is (was)
DACA?
As referenced above, the ‘D A’ in DACA stands for ‘Deferred
Action’. ‘Deferred Action’ is a legal
term that references a longstanding immigration administrative tool that has
been in use since the 1970s. ‘Deferred
Action’ simply means that the act of formally removing a person from the U.S.
will be deferred for a specific period of time.
From a functional standpoint, it can also be viewed that a prosecutor
from the U.S. Dept. of Justice uses his or her discretion to not act to remove
a person from the U.S. because of sympathetic factors or in deference to other
‘deportation’ priorities. This is known
as ‘prosecutorial discretion’.
Understanding this helps us clarify
what ‘Deferred Action’ does not do. It
does not grant any type of ‘status’ to the individual. The person is not eligible for a ‘green
card’, much less U.S. citizenship – and the person cannot sponsor anyone else
for an immigration benefit. The only
thing ‘Deferred Action’ does is temporarily shield the person from an action to
remove him or her from the U.S.; in addition, the individual who is granted
‘Deferred Action’ is also permitted to seek work authorization in accordance
with Federal Regulations.
On June 15, 2012, then-President
Obama ordered the Department of Homeland Security to consider young persons who
had already been brought to the U.S. before January 1, 2010 and were at that
time under the age of 16, to seek ‘Deferred Action’. Since it was being used for a specific sector
of young people living in the U.S. his program was initiated as ‘Deferred
Action’ specifically for ‘Childhood Arrivals’, (or ‘DACA’).
It is instructive to note that the
DACA program was not the creation of a new immigration benefit – (Deferred
Action has been around for nearly 40 years) – it was simply identifying a
specific segment of society for whom these existing federal regulations would
systematically apply. Each individual,
however, would still need to prove eligibility for deferred action on a
case-by-case basis by filing a Form I-821D – ‘Application For Consideration of
Deferred Action’ – with U.S. Citizenship & Immigration Services. If the applicant met the qualifications and
successfully passed a background check, the individual could receive ‘Deferred
Action’ for a 2-year period.
In November of 2014, President
Obama sought to expand the DACA program to extend the period of Deferred Action
from 2 years to 3 years and include a greater number of persons who arrived
before the age of 16. (These persons are
often referred to as ‘Dreamers’ – which alludes to an earlier Congressional
Bill that offered similar benefits known as “The Dream Act”.) Several state attorneys general brought suit
in a Texas federal court to enjoin the DACA expansion. Their success against the DACA expansion was solidified when the U.S.
Supreme Court deadlocked on a 4-4 vote on whether or not President Obama’s
actions exceeded his executive authority as President of the United
States. The original DACA program was
not included in the Texas lawsuit – but what seemed to prompt today’s
announcement was the threat among several state attorneys general to sue
President Trump if he did not terminate the program on the grounds that DACA
exceeded President Obama’s executive authority.
Tennessee’s Attorney General, Herb
Slatery was initially among 10 attorneys general who threatened to sue
President Trump if he did not terminate the program – but appropriately
backed-out of the threat in recognition of the “human element” represented by
the many DACA recipients who “have outstanding accomplishments and laudable
ambitions”– and encouraged Tennessee Senators Lamar Alexander and Bob Corker to
support a legislative solution to the issue.
It is hard to avoid noting the ironic argument that the Trump
Administration would have had to make: that the President did not have
executive authority to act on these types of immigration matters, when numerous
and significant changes to our immigration system have been made exclusively by
executive order by President Trump since January of this year.
Interestingly, when President Obama
initiated the DACA program, his stated purpose was to create a temporary
program until Congress could act to pass legislation to give these same young
people actual immigration benefits including legal status, work authorization
or even perhaps lawful permanent residency.
Proposed bi-partisan legislation authored by Republican Lindsey Graham
and Democrat Richard Durbin seeks to ‘legislate’ these benefits which – if
successful, would be a more reliable means to accomplish the same ends.
What Does President Trump’s Memorandum
Issued This Morning Actually Do?
First – it
formally and immediately rescinds President Obama’s Memorandum of June 15,
2012, discussed above. In other words,
the DACA program is immediately terminated.
But there are many logistical issues to consider, so the
program will have to ‘wind down’ in an ‘orderly fashion’. Thus, here are some of the other logistical
ramifications of the President’s decision:
Second – USCIS
will continue to adjudicate new DACA applications that have already been
filed. If you have not already filed a
new DACA application, it’s too late now.
Third – USCIS
will continue to adjudicate DACA renewal applications that have already been
filed – and – will actually continue to accept DACA applications for renewal up until
October 5, 2017 for persons whose current DACA benefits expire before March 5,
2018.
Fourth – the U.S.
Department of Homeland Security will not terminate or revoke Deferred Action
benefits from those who currently have them.
Of course, once they expire, they will not be renewed.
Fifth – Advance
Parole: if you have been previously
approved for advance parole (the permission to travel abroad and then be
admitted back into the U.S.), the Department of Homeland Security/Customs &
Border Protection – states that it will continue to honor the permission to
return to the U.S., but reminds us that it can also revoke or terminate this at
any time. [I think this means ‘travel at
your own risk’.]
Furthermore, it will not approve
any new applications for advance parole and will close any applications for
advance parole that are currently pending.
The Long-View
So what happens next?
The political calculation appears to be to give Congress a
deadline to pass legislation that confers benefits to young people in this
similar situation. There seems to be
some momentum for this since the majority of Americans polled seem to support
benefits for ‘Dreamers’. The less
optimistic view is that the DACA program was born out of the same predicament:
the inability of Congress to pass a law addressing this issue forced President
Obama to issue a Memorandum instead. Is
it possible for Republicans and Democrats, Senate and House of Representatives
to cooperate to pass legislation that amounts to immigration reform?
I am reminded of the great hope and momentum that emerged
from the U.S. Senate in the summer of 2013 when a strong majority of the Senate
– both Republicans and Democrats - voted to enact a Comprehensive Immigration
Reform Act, only to see it completely abandoned by the House of
Representatives. That was our last best
hope to help fix our ailing immigration system.
President Trump has now created a new opportunity for our
Senators and Congressional Representatives to work together to solve this
compelling issue.
Here’s hoping that history will not be repeated.
HS&D Immigration
