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DACA ends but lawsuits challenging rescission remain

By Pamela Wolf, J.D.

October 5, 2017, was the deadline for Deferred Action for Childhood Arrivals (DACA) recipients to renew their status under a move that House Democratic Caucus Chairman Joe Crowley (D-N.Y.) called a “crisis for DREAMers and their families” created by the Trump administration’s decision to end the DACA program. On September 5, U.S. Attorney General Jeff Sessions announced that DACA is being rescinded, several hours after Trump had laid the groundwork by tweeting “Congress, get ready to do your job – DACA!” A coalition of state attorneys general, as well as the NAACP, quickly filed lawsuits challenging the rescission.

The DACA program provided “lawful presence” status, including work authorization and access to certain benefits, to individuals who were illegally brought to the United States as children before reaching age 16, and who were vetted for any criminal history or a threat to national security.

“Democrats will keep fighting to give 800,000 DREAMers and their families the security and future they deserve,” Crowley said in a statement.

DACA no longer available. In an October 3 release, New York Attorney General Eric T. Schneider warned DACA recipients against potential fraud by those who may suggest they can obtain special dispensations for DACA recipients and posted a list of the cold realities:

  • The Department of Homeland Security will no longer accept new DACA applications
  • DACA grantees with work permits expiring between September 5, 2017 and March 5, 2018, can apply for a renewal. Currently, all renewal applications must be submitted to DHS no later than October 5, 2017.
  • DACA grantees can no longer apply for advanced parole.
  • Individuals with deportation orders should seek legal advice from either a lawyer or an accredited representative as soon as possible.

Legal challenges. Schneider and a coalition of other state attorneys general filed a lawsuit in September asserting that the Trump administration violated the Equal Protection clause by discriminating against DREAMers of Mexican origin, who make up 78 percent of DACA recipients; violated Due Process rights; and harmed States’ residents, institutions, and economies.

The NAACP also filed a lawsuit in September challenging DACA’s rescission under the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act (APA), and the Regulatory Flexibility Act (RFA). At the heart of the NAACP’s suit is the fact that DACA recipients relied on guarantees made about the program when they provided required personal information in their applications, as well as a mounting concern that the information may now be used against them.

The NAACP’s complaint noted that the commitment not to use biographical information against applicants was reiterated by then-DHS Secretary Jeh Johnson in 2016: “Since DACA was announced in 2012, DHS has consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes.”