Thursday, June 15, 2017

DAPA and DACA+ Rescinded by DHS Secretary Kelly

On November 20, 2014, President Obama took executive action to block the deportation of 4 to 5 million more undocumented immigrants, primarily the parents of U.S.-citizen children or lawful permanent resident children, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This was another bold action by the President of unprecedented scope—even broader than the action on behalf of DREAMers.  But 26 states filed a lawsuit challenging President Obama’s executive action, challenging his authority and arguing that the costs of supporting undocumented immigrants would cause them irreparable harm. The President’s actions were enjoined in Texas, et al. v. United States, by the Fifth Circuit Court of Appeals. On June 23, 2016, an equally divided four-to-four Supreme Court could not reach a decision, so the Fifth Circuit injunction stood, pending a trial on the merits at the trial court. However, given the election of Donald Trump, the commitment to DAPA and the defense of DAPA by the Department of Justice was doubtful. Interestingly, in the introductory remarks to DHS Secretary Kelly’s February 17, 2017 enforcement memo, neither DACA nor DAPA were rescinded.

However, today, on June 15, 2017, DHS issued this press release:

FACT SHEET: Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)

On June 15, Department of Homeland Security Secretary John F. Kelly, after consulting with the Attorney General, signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) because there is no credible path forward to litigate the currently enjoined policy.

The rescinded memo purported to provide a path for illegal aliens with a U.S. citizen or lawful permanent resident child to be considered for deferred action. To be considered for deferred action, an alien was required to satisfy six criteria:

(1) as of November 20, 2014, be the parent of a U.S. citizen or lawful permanent resident;
(2) have continuously resided here since before January 1, 2010;
(3) have been physically present here on November 20, 2014, and when applying for relief;
(4) have no lawful immigration status on that date;
(5) not fall within the Secretary’s enforcement priorities; and
(6) “present no other factors that, in the exercise of discretion, make [ ] the grant of deferred action inappropriate.”

Prior to implementation of DAPA, twenty-six states challenged the policies established in the DAPA memorandum in the U.S. District Court for the Southern District of Texas. The district court enjoined implementation of the DAPA memorandum, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and the Supreme Court allowed the district court’s injunction to remain in place.

The rescinded policy also provided expanded work authorization for recipients under the DACA program for three years versus two years. This policy was also enjoined nationwide and has now been rescinded.

The June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.


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