September 06, 2017
Author(s): Jason Gerrol
On September 5, 2017, the Trump administration announced the rescission of the Deferred Action for Childhood Arrivals (DACA) program, which will be “phased out” over the next several months.
On September 5, 2017, the Trump administration announced the end of the Deferred Action for Childhood Arrivals (DACA) program, which will be “phased out” per the below schedule. Since the announcement of the DACA initiative, in June 2012, by President Obama and the Department of Homeland Security (DHS), nearly 800,000 individuals have been granted DACA. In short, DACA provides protection from removal (deferred action) and employment authorization to unauthorized immigrants who came to the U.S. as children with their parents or guardians. DACA recipients will not have their DACA status immediately cancelled. Rather, individuals who have been granted DACA will retain that status through the expiration date listed on their DACA approval notice and Employment Authorization Document (EAD).
DACA recipients will retain their DACA status until the expiration of their current DACA approval notice and EAD. DACA recipients with a renewal application pending, or whose benefits will expire on or before March 5, 2018, will be eligible for an additional two years of DACA status (renewal applications must be filed by October 5, 2017). DACA recipients whose benefits expire after March 5, 2018 are not eligible for a renewal of their current DACA status.
While USCIS will no longer issue Advance Parole travel authorizations, DHS has stated that it will honor the validity period of any previously approved Advance Parole. However, DACA recipients in possession of valid Advance Parole should note that Customs and Border Protection (CBP) retains the authority to determine the eligibility of any person for parole entry to the U.S., and that USCIS will “retain the authority to revoke or terminate any advance parole document at any time.” As such, DACA recipients in possession of a valid Advance Parole should carefully consider whether to pursue international travel plans at this time.
Individuals with currently valid DACA approval notices and EADs still have deferred action protection (unless they have committed a crime or otherwise violated their DACA status). However, upon the expiration of an individual’s DACA status, he/she will no longer be eligible for deferred action from removal.
DHS has stated that information provided to USCIS in DACA applications “will not be proactively provided to [Immigration and Customs Enforcement (ICE)] and CBP for the purpose of immigration enforcement proceedings,” but it remains unclear whether such information will be shared if requested by ICE. In a statement issued by President Trump, DACA recipients are “not enforcement priorities.” Nevertheless, DACA recipients should consult with experienced immigration counsel to discuss their options once DACA removal protections expire.
Employment authorization for any DACA recipient will end as of the expiration date listed on his/her EAD. No employment grace period will be provided, and any employment after the expiration of the EAD will be considered unauthorized employment.
President Obama and DHS established DACA in June 2012, and in November 2014, DACA was expanded and a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was created. Twenty-six states challenged DAPA in the U.S. District Court for the Southern District of Texas, which granted a preliminary injunction against DAPA. The U.S. Court of Appeals for the Fifth Circuit affirmed that decision, finding the Immigration and Nationality Act does not permit such executive actions and “DAPA is foreclosed by Congress’s careful plan.” The U.S. Supreme Court affirmed the Fifth Circuit’s ruling in an equally divided 4–4 vote.
On June 29, 2017, Texas and several other states sent a letter to Attorney General Jeff Sessions claiming DACA is unlawful for the same reasons stated by the Fifth Circuit with regard to DAPA, and if the Trump administration did not rescind DACA prior to September 5, 2017, legal action to challenge DACA would be taken (forcing Attorney General Sessions to defend DACA, which he has described as an “unconstitutional exercise of authority by the Executive Branch”). While President Trump had previously issued conflicting statements regarding the future of DACA, the decision to rescind the DACA program was issued on September 5, 2017.
The fate of DACA recipients, or “Dreamers,” now rests with Congress, and according to President Trump, it is now time for lawmakers to “do something and do it right.” The Dream Act, which would grant legal status to children brought to the U.S. illegally by their parents, was first introduced sixteen years ago and has repeatedly failed to receive the votes needed (a principal factor in President Obama’s decision to establish DACA in the first place). Nevertheless, both Democrats and Republicans are now expressing support for the Dream Act, or a similar measure, to address the uncertainty created by the rescission of DACA.
In addition, several states—including New York, Washington and Massachusetts—have already filed a complaint in the United States District Court for the Eastern District of New York, arguing that the Trump administration’s decision to rescind DACA violates the Administrative Procedure Act and the Fifth Amendment and asking the court to enjoin the federal government from using data gathered from DACA applications in immigration enforcement.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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