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DACA ‘unconstitutional,’ Sessions declares; DHS announces next steps

By Joy P. Waltemath, J.D.

In a widely signaled move to make good on a Trump campaign promise and stave off threatened litigation, Attorney General Jeff Sessions announced September 5 that “the program known as DACA that was effectuated under the Obama Administration is being rescinded.” Several hours earlier, President Trump had laid the groundwork by tweeting “Congress, get ready to do your job – DACA!”

Sessions called the Deferred Action for Childhood Arrivals program, which provided “lawful presence” status, including work authorization and access to certain benefits, to individuals who were illegally brought to the U.S. as children before reaching age 16, and who were vetted for any criminal history or a threat to national security, “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of authority by the Executive Branch.”

According to Sessions, DACA “has denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”

Legal challenges. In prepared remarks, Sessions said that DACA “is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit,” and later affirmed by an equally divided 8-member Supreme Court.

In 2016’s U.S. v. Texas, the Supreme Court’s 4-4 action let stand a decision in which the Fifth Circuit upheld a district court injunction blocking an executive enforcement guidance that would implement the Department of Homeland Security’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

The DAPA program would have allowed DHS to halt deportation proceedings and issue work permits and other benefits to a specific class of undocumented immigrants. The program sought to implement immigration reform measures proposed by President Obama in November 2014 after immigration reform had stalled in Congress. The preliminary injunction also blocked a proposed expansion of DACA, which was initially implemented in 2012.

“Wind-down.” “If we were to keep the Obama Administration’s executive amnesty policy,” noted Sessions, “the likeliest outcome is that it would be enjoined just as was DAPA. The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program. Acting Secretary Duke has chosen, appropriately, to initiate a wind down process. This will enable DHS to conduct an orderly change and fulfill the desire of this administration to create a time period for Congress to act—should it so choose. We firmly believe this is the responsible path.”

Congressional “window of opportunity.” In a follow-up statement, President Trump noted that “the Department of Homeland Security will begin an orderly transition and wind-down of DACA, one that provides minimum disruption. While new applications for work permits will not be accepted, all existing work permits will be honored until their date of expiration up to two full years from today. Furthermore, applications already in the pipeline will be processed, as will renewal applications for those facing near-term expiration. This is a gradual process, not a sudden phase out. Permits will not begin to expire for another six months, and will remain active for up to 24 months. Thus, in effect, I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

The President also noted that enforcement priorities remain unchanged. “We are focused on criminals, security threats, recent border-crossers, visa overstays, and repeat violators. I have advised the Department of Homeland Security that DACA recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang,” the President said, although in the same message he specifically mentioned that DACA had “helped spur” an influx of “unaccompanied minors from Central America including, in some cases, young people who would become members of violent gangs throughout our country, such as MS-13.”

The RAISE Act. And Trump again cited the RAISE Act as immigration-reform legislation that he could support (see Employment Law Daily, RAISE Act would move to merits-based immigration system, August 2, 2017). “Congress now has the opportunity to advance responsible immigration reform that puts American jobs and American security first,” Trump noted. “We must reform our green card system, which now favors low-skilled immigration and puts immense strain on U.S. taxpayers. We must base future immigration on merit – we want those coming into the country to be able to support themselves financially, to contribute to our economy, and to love our country and the values it stands for. Under a merit-based system, citizens will enjoy higher employment, rising wages, and a stronger middle class.”

The administration also released a list of bullet points explaining its action and identifying the steps it believes are necessary to “achieving principled pro-worker immigration reform.” First on the list is, of course, the border wall.

DHS next steps. Sessions also released the text of his letter to Acting DHS Secretary Elaine C. Duke to rescind DACA. In turn, DHS released its Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA).

In part, the memorandum speaks of the “complexities associated with winding down the program.” Among other things, effective immediately, DHS:

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
  • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
  • Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018, that have been accepted by the Department as of October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
  • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

DHS also stated that the memorandum “is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.”