While the Trump administration attempted to swiftly eradicate DACA, federal court cases have kept it alive for the time being, but its future remains far from certain as the question likely heads to the Supreme Court.
Deferred Action for Childhood Arrivals (DACA), an Obama-era program that allowed certain undocumented immigrants who entered the U.S. as children to be protected from deportation and to legally work in the U.S., has been crippled by the Trump administration. However, contrary to the current administration’s intention, the program has not been completely eradicated – although it certainly seemed like it would be when Trump first took action to get rid of it. Thanks to several legal victories, the program still protects hundreds of thousands of undocumented immigrants, although it remains on life support with an uncertain future.
First, let’s go over how we got here. In June of 2012, then-Secretary of Homeland Security Janet Napolitano announced the DACA program, granting deferred action to qualified applicants under age 31 (as of June 15, 2012) who came to the United States before their 16th birthday. In addition to these qualifications, applicants had to meet certain additional requirements, pass background checks, and demonstrate good moral character. Once granted, DACA would allow deferred action for a period of two years, meaning that the individual would be protected against deportation for that period of time. DACA recipients could also obtain authorization to work in the U.S. DACA and its accompanying work authorization could be renewed every two years. It is important to note that DACA did not and does not grant lawful status in the U.S., but merely protects against deportation for the period of time it has been granted or renewed.
In the initial memo enacting the policy, former Secretary Napolitano expresses the intent of the policy to protect certain young people who were brought to the U.S. as children and who therefore had no intent to violate the immigration laws of the U.S. Many of these young people have never known any other home than the U.S. A great many have never even been back to their country of birth.
The memo also demonstrated a more practical purpose for the policy, which was to provide an additional step to make sure government resources – and taxpayer money – were not expended on low-priority deportation cases against individuals who positively contributed to society and who had little to no criminal background. Napolitano then stated what many of our politicians should be reminded of today: “[Our immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case[, n]or are they designed to remove productive young people to countries where they may not have lived or even speak the language.”
As a subsequent Department of Homeland Security memo of November 20, 2014 further notes, the government’s case-by-case evaluations of DACA requests benefit the U.S. economically and in protecting the country’s security. These individuals are subject to rigorous evaluation and background checks before being granted DACA and each time they renew. After they have been granted DACA, they contribute positively to the U.S. economy by working legally and paying taxes.
DACA survived in substantially the same form for several years. Although Obama attempted to expand the program to cover more people and to allow for three-year DACA and employment authorization grants, these extensions were enjoined, and the program continued in the same manner until Trump’s actions in September of 2017.
On September 5, 2017, Trump moved to terminate DACA. In his announcement that the program was being rescinded, then-Attorney General Jeff Sessions made an about-face on previous DHS reasoning for the DACA program. In contrast to the 2014 memo, Sessions falsely claimed that DACA recipients negatively impact the U.S. economy and painted them as lawbreakers. The current administration’s rescission of this policy is discussed in more detail in our previous blog post regarding DACA entitled “The End of DACA.”
While the administration completely ceased allowing new grants of DACA and only allowed adjudication of renewals for people whose grant of DACA expired before March 5, 2018 (as long as they applied by October 5, 2017), legal battles against the rescission ensued almost as soon as it was implemented. One crucial lawsuit was filed in California on September 8, 2017, three days after the rescission of DACA, known as Regents of the University of California v. United States Department of Homeland Security. On January 9 of this year, the district court judge ordered the government to resume accepting renewal applications for DACA; however, he did not order the government to accept applications from those who had never before been granted DACA.
For the time being, since January 2018, the government has resumed accepting (and granting) DACA renewal applications. However, the Regents case, after being upheld by the Ninth Circuit Court of Appeals, is highly likely to make its way to the U.S. Supreme Court – which now has a conservative majority. The future of DACA – whether it will be reinstated wholesale, be completely rescinded, or something in between – is likely to be determined sometime next year, late in the Supreme Court’s term. For many eligible immigrants, that means that renewal applications may continue to be accepted at least until June of 2019, when the Supreme Court is projected to rule on the matter.
The future of the DACA program may very well rest in the hands of the conservative-leaning Supreme Court. In the meantime, it is important to continue to advocate for continuing DACA. Even more crucial is to advocate for a permanent legislative solution, one that can give Dreamers a path to permanent residency and eventual citizenship.
Finally, we would like to spread awareness to the hundreds of thousands of people who have been granted DACA that they still have an opportunity to renew and extend their protection against deportation for as long as possible. If you have been granted DACA and are looking to renew in the upcoming months, do not hesitate to call us. We offer complimentary initial case evaluations to answer your questions and attempt to find the best solution for you, whether that’s a DACA renewal request or a path to permanent resident status you had not considered.