DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA). A REVIEW OF THE PROGRAM AND WHERE IT STANDS NOW

The Deferred Action for Childhood Arrivals program, known as DACA, implemented by President Obama on June 15, 2012 has been at the forefront of the discussion surrounding immigration since its implementation.  This is even more-so since President Trump issued an order rescinding the program, leaving hundreds of thousands of young immigrants in limbo of what their future holds.  On April 24, 2018, a decision by a federal judge in California practically reinstates the program in its entirety, subject to a 90 day delay for the government to provide a sufficient basis for revoking the program.  This decision, the third to be issued by a federal judge on the matter, goes one step further than the prior two decisions, and requires the government to reinstate the DACA program for immigrants who have never been granted deferred action previously.

 

Given the importance of this issue in our society today and the large impact it has on our country, I wanted to spend some time reviewing the history of DACA, the legal challenges it has faced since its inception, and where the program stands now.

 

DACA was created on June 15, 2012 by the Obama administration through the issuance of the DHS memo Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.  This memo, issued by then Secretary of Homeland Security Janet Napolitano, granted prosecutorial discretion to certain immigrants who came to the United States at a young age and met other specific requirements relating to education and lack of criminal history.  Specifically, to be eligible for DACA, an immigrant must meet the following requirements:

 

  1. Entered the United States prior to the immigrants 16th birthday;
  2. Continuously resided in the United States since June 15, 2007;
  3. Must have been present in the United States on June 15, 2012 when the memo was issued;
  4. Must meet one of these educational or military service requirements:
    1. Currently be enrolled in school
    2. Have a high school diploma
    3. Have a GED
    4. Is an honorably discharged veteran of the Coast Guard or U.S. Armed Forces
  5. Must have not been convicted of certain criminal offenses, including a felony, significant misdemeanor, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety
  6. Must be under the age of 30.

 

Under the June 15, 2012 memo, a person who met the above requirements could be granted prosecutorial discretion and granted work authorization.  An important not in relation to this program is that it did not grant legal status or a path to citizenship for the recipients.  Many people believe DACA to be a path to citizenship or an amnesty program, but it is not.  DACA is simply a deferred prosecution program allowing an individual to work in the United States and be free from the worry of deportation as long as that person does not commit criminal offenses or violate any conditions of the grant of prosecutorial discretion.  Additionally, this grant does not allow recipients to obtain federal financial aid, health care benefits, social security benefits, or the ability to vote.  This CNN article from October 11, 2017 addresses many of these common myths relating to DACA and provides additional information on these topics.

 

Even if an immigrant is granted DACA, it is not a permanent grant.  DACA must be renewed every two years, at which point the individual must establish that they still meet all the requirements for the program.  This includes showing that they have either graduated from high school or are still pursuing a diploma/GED and undergoing an in-depth FBI background check to establish that they have not committed criminal offenses.  Additionally, a DACA recipient cannot leave the United States without relinquishing his/her status and will not be allowed to re-enter unless the travel is made after first getting permission from the Department of Homeland Security.

 

On November 20, 2014, another memo was issued by the Obama administration regarding expanding DACA and implement DAPA.  The memo was entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents.  This memo, issued by then Secretary of Homeland Security Jeh Johnson, expanded the DACA program specifically by removing the age restriction that required applicants to apply before their 31st birthday.  Additionally, the program changed the entry date requirement to be eligible for DACA.  The 2012 memo required an immigrant to be present in the United States as of June 15, 2007, however, the 2014 memo modified that date to January 1, 2010.  In addition to expanding DACA, the 2014 memo created prosecutorial discretion protection for certain parents of United States Citizens and Lawful Permanent Residents.  This protection, known as DAPA, as well as the expansion of DACA was never executed due to lawsuits which challenged its constitutionality.

 

On December 3, 2014, many states banded together and filed suit in U.S. District Court in seeking an order preventing the Obama administration for implementing the expansion of DACA and creation of DAPA in the 2014 memo issued by Secretary Johnson.  On February 16, 2015, Judge Andrew Hanen, a Federal judge in Texas, granted the request for a preliminary injunction on the basis that President Obama did not follow the procedural requirements in the Administrative Procedures Act.  See, Texas v. United States, 85 F. Supp. 3d 591, 677 (S.D.Tex. 2015).  Importantly, this was not a decision made on the substantive constitutionality of the DAPA and expanded DACA programs, but rather the decision discussed procedural implementation of the programs.  This decision was appealed to the Fifth Circuit Court of Appeals, which affirmed the lower court’s order granting the preliminary injunction in State of Texas v. United States, 15-40238 (5th Cir. 2015).  On June 23, 2016, the Supreme Court, which heard the case with only 8 justices due to the death of Justice Antonin Scalia on February 13, 2016, affirmed the lower court’s decision after being deadlocked in a split vote of 4-4.  See, United States v. Texas, 579 U.S. ___(2016).    As a result of this litigation, the expanded DACA and DAPA implementation was never effective and the current DACA eligibility requirements are those laid out in the 2012 memorandum.

 

On September 5, 2017, the Trump administration issued a memorandum rescinding the June 15, 2012 memorandum that created DACA.  Pursuant to this memo, USCIS issued guidance indicating that no new DACA applications would be accepted as of September 5, 2017 and no new renewal applications would be accepted after October 5, 2017.  However, all pending applications filed by these dates would be processed.  Because a DACA recipient could only renew his/her application 6 months prior to its expiration, what this meant was that DACA recipients whose status expired after March 5, 2018 would no longer be able to renew and their protections in the United States would end.  President Trump’s reasoning for this decision revolved around expecting Congress to come up with a solution for DACA eligible immigrants.  However, DACA was implemented due to Congress’ inability to enact such a solution back in 2012.  The government shutdown in January 2018 and the near shutdown in March 2018, reflect that Congress is still no closer to finding a solution then it was 6 years ago.

 

In the 7 months since the Trump administration issued the September 5, 2017 memo, numerous legal challenges to the rescission of DACA have been raised in federal court.  While there were many other challenges to the legality of the Trump administrations order to rescind DACA, the two decisions discussed below were the most notable, at least until the April 24, 2018 decision was issued.  The National Immigration Law Center issued a great release discussing this litigation in detail, including the other pending cases for those who are interested in a more in-depth review of the litigation history.

 

On January 9, 2018, United States District Court Judge William Alsup sitting in the Northern District of California issued an order requiring the Department of Homeland Security to continue accepting and processing renewal DACA applications.  This order was limited to those immigrants who had already been granted DACA and did not apply to new DACA applications.  In response to this order, the Department of Homeland Security resumed processing DACA renewal applications.

 

The second ruling affecting the Trump administrations attempt to rescind DACA came on February 13, 2018.  United States District Court Judge Nicholas G. Garaufis sitting in the Eastern District of New York issued an order similar to the January 9, 2018 order of Judge Alsup, requiring renewal applications to be accepted.  Again, this decision did not apply to those who had never been granted DACA before.

 

This brings us to the April 24, 2018 order, which is the third and most expansive decision regarding the rescission of DACA.  The issuance of this decision by Judge John Bates is arguably the biggest blow to the Trump administration’s attempt to rescind DACA.  The first very surprising fact about this decision is that Judge Bates is the first Republican appointee to rule against President Trump on the DACA issue.  Additionally, unlike the prior District Court Decisions, the Judge Bate’s order applies not only to those recipients who have previously been granted DACA, but applies to new DACA applications as well.  Despite ruling that the decision to end DACA was “arbitrary and capricious” because DHS did not “adequately explain its conclusion that the program was unlawful,” Judge Bates agreed to stay the implementation of his ruling for 90 days to allow the Department of Justice an opportunity to justify why it should be allowed to end the program.

 

So, what is the current status of DACA and what do these rulings mean for the future of DACA?  The short answer is, after all the litigation that has ensued to date, we don’t know what the future will hold.  The Department of Justice appealed the January 9, 2018 decision of Judge Alsup to the Ninth Circuit Court of Appeals.  The Ninth Circuit is scheduled to hear oral arguments on this matter on May 15, 2018 in Pasadena, California.  The February 23, 2018 decision of Judge Garaufis has been appealed to the Second Circuit Court of Appeals and is currently pending in Docket number 18-485.  Only time will tell what will happen in the 90 days granted by Judge Bates before his April 24, 2018 ruling takes effect.  It is possible the Ninth Circuit Court of Appeals may have a decision by that date that adds another layer to this complex litigation.

 

For now, though, anyone who has been issued DACA, even if that DACA has expired, is eligible to renew their deferred action and their work authorization.  Those who have not been granted DACA in the past but are otherwise eligible should keep a close eye on this litigation, as it directly affects their future in the United States.  In fact, we should all be keeping an eye on this as it has the potential to have an enormous impact on our society and economy as a whole.  Regardless of a person’s political views, the fact is that DACA eligible individuals have spent the majority of their lives in the United States, they are educated, and they don’t commit criminal offenses.  These are the people we should be fighting to keep in our country, not pushing to relocate to other areas of the world.

 

Thanks for taking the time to read my blog.  If you would like updates on future blog posts, please follow me on facebook, Instagram(@fuhrimanlaw), or twitter(@fuhrimanlaw).  You can also subscribe to my YouTube channel where I post vides relating to immigration topics as well.  I would love to hear your thoughts or questions on DACA or other topics you would like to hear more about in future blog posts.