Federal policy on DACA and DAPA, 2017-2020

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Federal policy on immigration, 2017-2020
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For more on immigration policy, view the following articles:
•Timeline of federal policy on immigration, 2017-2020
•115th Congress on immigration, 2017-2018
•Federal policy on border security, 2017-2019
•Federal policy on DACA and DAPA, 2017-2020
•Federal policy on immigration enforcement and visa programs, 2017-2020
•Federal policy on sanctuary jurisdictions, 2017-2018
•Sens. Cotton and Perdue's Reforming American Immigration for a Strong Economy Act
•Trump administration officials on immigration
•Immigration policy in the U.S.
See also: Federal policy on immigration, 2017-2020

The Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) programs were immigration policies established by the Obama administration that protected certain individuals residing in the United States without legal permission from deportation and allowed those individuals to go to school and work. Both policies were executive actions that relied on deferred action, which is "[a] use of prosecutorial discretion to not remove an individual from the country for a set period of time," according to U.S. Citizenship and Immigration Services.[1]

DACA applies to individuals who were brought to the United States as children without legal permission. It was established in 2012. The DACA program was formally rescinded by Acting Secretary of Homeland Security Elaine Duke in September 2017. In a statement, President Donald Trump said he would work "with Republicans and Democrats in Congress to finally address all of these issues in a manner that puts the hardworking citizens of our country first."[2][1][3]

Congress has been unable to agree on a legislative solution for the future of the DACA program, which the Trump administration announced it would end on March 5, 2018. The end date was delayed after federal judges in San Francisco and New York issued preliminary injunctions requiring the Trump administration to continue renewing DACA permits. In April 2018, a U.S. district judge ruled that the Trump administration had to continue accepting new applications from individuals seeking benefits under DACA. The previous rulings only required the administration to process renewal requests. The order did not take effect immediately. The Trump administration was given 90 days to explain its decision to end DACA.[4]

On November 8, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the Trump administration's attempt to end DACA. Ruling that the administration's reasons for ending DACA were arbitrary, the court wrote, “DACA was a permissible exercise of executive discretion.”[5][6]

On June 18, 2020, the U.S. Supreme Court ruled in Department of Homeland Security v. Regents of the University of California (DHS) that DHS did not properly follow Administrative Procedure Act (APA) procedures when it sought to end the program in 2017. The court remanded the issue back to DHS, which can reattempt to end the program by providing a more thorough explanation for its decision.[7]

DAPA was established in 2014 and would have applied to parents of U.S. citizens and lawful permanent residents (Green Card holders). DAPA was challenged in court by 26 states and placed on hold by a preliminary injunction. The policy was never implemented and was formally rescinded by former Secretary of Homeland Security John Kelly in June 2017.[1][8]

The following information on DACA and DAPA can be found on this page:

DACA

Status of DACA

Under the Trump administration's September 2017 order, the DACA program was supposed to end on March 5, 2018. Federal judges in San Francisco and New York issued preliminary injunctions requiring the Trump administration to continue renewing DACA permits. While the cases against the Trump administration work their way through the courts, DACA recipients can continue to renew their permits to live, work, and go to school in the U.S. The permits are issued for two-year periods. Without the injunctions, DACA recipients would have lost their benefits after their individual permits expired following the stated March 5, 2018, end date for the program. Congress has been unable to find a permanent solution for DACA recipients.[9][10]

In April 2018, a U.S. district judge ruled that the Trump administration had to continue accepting new applications from individuals seeking benefits under DACA. The previous rulings only required the administration to process renewal requests. The order did not take effect immediately. The Trump administration was given 90 days to explain its decision to end DACA.[4]

On November 8, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the Trump administration's attempt to end DACA. Ruling that the administration's reasons for ending DACA were arbitrary, the court wrote, “DACA was a permissible exercise of executive discretion.”[5][11]

On June 18, 2020, the U.S. Supreme Court ruled in Department of Homeland Security v. Regents of the University of California (DHS) that DHS did not properly follow Administrative Procedure Act (APA) procedures when it sought to end the program in 2017. Though DHS started the program in 2012 with a memo that itself did not go through the APA rulemaking process, the court’s ruling argued that DHS failed to provide required analysis of all relevant factors associated with ending the DACA program. The majority opinion argued that that made the decision arbitrary and capricious under the APA. The court remanded the issue back to DHS, which can reattempt to end the program by providing a more thorough explanation for its decision.[7]

Timeline of events related to DACA

  • June 18, 2020: The U.S. Supreme Court ruled in Department of Homeland Security v. Regents of the University of California (DHS) that DHS did not properly follow Administrative Procedure Act (APA) procedures when it sought to end the program in 2017. The court remanded the issue back to DHS, which can reattempt to end the program.[7]
  • November 8, 2018: The United States Court of Appeals for the 9th Circuit upholds a preliminary injunction against the Trump administration's attempt to end DACA. Ruling that the administration's reasons for ending DACA were arbitrary, the court said, “DACA was a permissible exercise of executive discretion.”[5][12]
  • August 3, 2018: U.S. District Judge John Bates rules that the Trump administration must fully restore DACA. He delayed implementation of the ruling for 20 days in order to let the administration decide if it would appeal or not and to file a stay pending appeal if they chose to appeal.[13]
  • April 24, 2018: U.S. District Judge John Bates rules that the Trump administration has to continue accepting new applications from individuals seeking benefits under DACA. The order did not take effect immediately. The Trump administration had 90 days to explain its decision to end DACA.[4]
  • February 26, 2018: The United States Supreme Court declines to hear the Trump administration's appeal of Judge Nicholas Garaufis' February 13, 2018, opinion. The administration can appeal again after the circuit court of appeals hears the case.[14]
  • February 15, 2018: The Senate rejects four measures aimed at finding a legislative fix for the expiring DACA program and border security measures.
  • February 13, 2018: Judge Nicholas Garaufis issues a preliminary injunction temporarily blocking the Trump administration's order ending the DACA program.[9]
  • January 9, 2018: Judge William Alsup orders the Trump administration to continue processing renewal applications from individuals who had been granted deferred status under the Deferred Action for Childhood Arrivals (DACA) program. He also rules that the administration does not have to accept new applications for deferred status from people who have never before received the protected status.[10]
  • September 5, 2017: The Trump administration announces the rescission of DACA, effective March 5, 2018.[2]
  • June 29, 2017: The state of Texas and nine other states send a letter to Attorney General Jeff Sessions asserting that the original DACA program was unlawful and stated that if the administration did not rescind the program by September 5, 2017, Texas would amend the lawsuit against expanded DACA to include the original DACA program.[15]
  • June 15, 2017: Then-Secretary of Homeland Security John Kelly issues a memo formally rescinding the expansion of DACA. The original DACA program was left in place.[16]
  • June 23, 2016: The United States Supreme Court issues a per curiam ruling affirming the judgment of the 5th Circuit and upholding the preliminary injunction blocking the DACA expansion.[17]
  • November 9, 2015: The 5th U.S. Circuit Court of Appeals upholds the preliminary injunction blocking the DACA expansion.[18]
  • February 16, 2015: Judge Andrew Hanen of the United States District Court for the Southern District of Texas issues a preliminary injunction against the DACA expansion, preventing its implementation while the larger case moved through the courts.[19]
  • December 3, 2014: Twenty-six states, led by Texas, file a lawsuit challenging the expansion of the DACA program, arguing the program violated the Administrative Procedure Act.[20]
  • November 20, 2014: President Barack Obama (D) announces an expansion of DACA to individuals who had been in the United States since 2010.[21]
  • June 15, 2012: Secretary of Homeland Security Janet Napolitano announces the implementation of DACA to allow individuals who were brought to the United States as children without legal permission before 2007 to receive relief from being deported.[3]

Background on DACA

DACA was established via an administrative memo during the Obama administration in June 2012. The policy set forth "the exercise of our [U.S. Department of Homeland Security's] prosecutorial discretion" in enforcing immigration laws and provided temporary relief from deportation for individuals who had been brought without legal permission to the United States as children. Eligible individuals who applied were also granted work authorization.[3]

According to U.S. Citizenship and Immigration Services (USCIS), DACA originally applied to people who met the following criteria:[22]

"
  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching your 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.[23]
 ”

In 2014, President Barack Obama proposed expanding the DACA program to include individuals who had entered the United States before the year 2010, instead of the previous requirement of having entered before 2007. Applicants also would have no longer been required to be younger than 31 years old. According to the USCIS, as of June 2017, about 793,000 individuals had received DACA relief since the policy was first established in 2012.[21][24]

President Obama meets with DACA recipients

Since DACA was an executive action and not the result of new legislation from Congress, there was debate about whether such actions were permissible under the United States Constitution. Twenty-six states, led by Texas, filed a lawsuit challenging the expansion of the DACA program, arguing it violated the Administrative Procedure Act. On November 9, 2015, the 5th U.S. Circuit Court of Appeals ruled in favor of the states and upheld a preliminary injunction from a district court against the program's expansion. The injunction halted implementation of the DACA expansion until there was a final ruling on the case.[18][20]

On June 23, 2016, the Supreme Court of the United States issued a per curiam ruling affirming the judgment of the 5th Circuit. A per curiam opinion is one without a specific justice named as the author of the opinion. The court was evenly divided on the question, which left the injunction in place. On October 3, 2016, the Supreme Court rejected a request from the U.S. Department of Justice to rehear the case.[25][26][27]

115th Congress on DACA

Senate rejects four immigration reform proposals that address DACA

On February 15, 2018, the Senate began voting on a series of immigration bills aimed at finding a legislative fix for the expiring Deferred Action for Childhood Arrivals (DACA) program and border security measures. All of the measures failed to earn enough support for passage.

By a vote 52-47, the Senate rejected a measure from Sens. Chris Coons (D-Del.) and John McCain (R-Ariz.) that proposed a path to citizenship for 1.8 million individuals brought into the U.S. without legal permission as children and included a study to determine what border security measures were needed. It also proposed requiring the U.S. Department of Homeland Security (DHS) to secure the U.S.-Mexico border by 2021. It did not include any funding for border security. The motion needed 60 votes to proceed to a vote on the final bill.[28][29]

The Senate also rejected an amendment from Sen. Pat Toomey (R-Pa.) that proposed withholding “certain non-law enforcement federal grant funds from ‘sanctuary cities’ -- jurisdictions that forbid their local law enforcement officers from cooperating with federal immigration officials, even when they wish to do so,” according to a press release from Toomey’s office. The legislation was rejected by a vote of 54-45. Sixty votes were needed to overcome the procedural hurdle.[30][31]

By a vote of 54-45, the Senate rejected a bipartisan proposal from the Common Sense Coalition, a group of centrist senators, that proposed a path to citizenship for 1.8 million individuals brought into the U.S. without legal permission as children, $25 billion for border security, and limitations on family-based immigration. President Donald Trump threatened to veto the legislation because it did not include all of his immigration reform priorities. Sixty votes were needed to overcome the procedural hurdle.[32][33]

By a vote of 39-60, the Senate rejected a proposal from Sen. Chuck Grassley (R-Iowa) that included President Donald Trump's four immigration reform pillars. It proposed a path to citizenship for 1.8 million individuals brought into the U.S. without legal permission as children, $25 billion for border security, limits on chain migration or family-based migration, and eliminating the visa lottery system.[34]

The following Republican senators voted against the proposal:


After the votes, it was unclear how Congress would address DACA and other immigration reform measures.

Trump administration actions on DACA

Trump administration rescinds DACA

At a press briefing on September 5, 2017, Attorney General Jeff Sessions announced that Acting Secretary of Homeland Security Elaine Duke had issued a memo rescinding DACA. The memo outlined an end to DACA taking place over several months. The initial end date of March 5, 2018, was delayed after federal judges in San Francisco and New York issued preliminary injunctions requiring the Trump administration to continue renewing DACA permits.

In his official statement, President Trump stated that benefits for some individuals could remain in effect for up to two years.[2][16][35]

The memo described the reasoning behind the rescission of DACA as follows:

" On June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.


The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA 'was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.'[23]

”
—U.S. Department of Homeland Security[16]

In his press briefing, Sessions said that the program was "an unconstitutional exercise of the executive branch" and that it was his duty to uphold constitutional order.[2]

Lawsuits against the rescission of DACA

New York v. Trump

Sixteen state attorneys general initiated legal action against the rescission of DACA on September 6, 2017:[36]

  • New York
  • Massachusetts
  • Washington
  • Connecticut
  • Delaware
  • Washington, D.C.
  • Hawaii
  • Illinois
  • Iowa
  • New Mexico
  • North Carolina
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Vermont
  • Virginia

The lawsuit argued that the memo rescinding DACA violated the Fifth Amendment because it "target[ed] individuals for discriminatory treatment based on their national origin, without lawful justification" and did not contain a prohibition against "the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement." The lawsuit also argued that the federal agencies responsible for the memo "acted arbitrarily and capriciously, and otherwise not in accordance with law, and have abused their discretion" in violation of the Administrative Procedures Act. The lawsuit asked the court to place a preliminary injunction on the memo, which would prevent DACA from being rescinded.[36] The government moved to dismiss the lawsuit. The district court held arguments on the preliminary injunction and motion to dismiss on January 18, 2017.[37]

On February 13, 2018, Judge Nicholas Garaufis issued a preliminary injunction temporarily blocking the Trump administration's order ending the DACA program. The plaintiffs in the case filed suit to challenge that order. They argued in part that the Trump administration's order violated the Administrative Procedure Act (APA). They asked the court to issue a preliminary injunction to temporarily block the order while the case proceeded.[9]

Garaufis ruled that while the administration possessed the legal authority to end the DACA program, its stated rationale in its September 2017 order could not survive judicial review. Under the APA, courts asked to review administrative decisions "must set aside action, findings, or conclusions that are, among other things, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Garaufis wrote, "The question before the court is thus not whether [the administration] could end the DACA program, but whether they offered legally adequate reasons for doing so." In this case, Garaufis wrote, the Trump administration's stated rationale for ending the DACA program was its belief that the program was unconstitutional. Garaufis ruled that the Obama administration's creation of the program was within its legal authority. "Because [the Trump administration's] conclusion was erroneous," Garaufis concluded, "the decision to end the DACA program cannot stand." The preliminary injunction requires the administration to continue processing DACA applications while the litigation was underway. Garaufis emphasized that his order did not mean that the administration was unable to lawfully rescind DACA on different grounds.[9]

California v. Department of Homeland Security

On September 11, 2017, California Attorney General Xavier Becerra and the attorneys general of Maine, Maryland, and Minnesota filed a lawsuit against the U.S. Department of Homeland Security challenging the rescission of DACA. Becerra said the lawsuit was filed separately from the one initiated by New York and 15 other state attorneys general because one-quarter of DACA recipients reside in California. "I think everyone recognizes the scope and breadth of the Trump decision to terminate DACA hits hardest here," Becerra said.[38]

The lawsuit alleged that the memo rescinding DACA violated the Fifth Amendment because it did not contain sufficient assurances that the information contained in DACA applications would not be used in future immigration enforcement and because it "discriminated against DACA grantees in violation of the equal protection guarantee of the Fifth Amendment." The lawsuit also argued that the memo violated the Administrative Procedures Act because the agencies responsible for the memo issued it "without notice-and-comment rulemaking" and that the agencies "have acted arbitrarily and capriciously, have abused their discretion, have acted otherwise not in accordance with law, and have taken unconstitutional and unlawful action."[39]

The states claimed that the government had failed to turn over the entirety of the administrative record detailing how the administration made its decision to rescind DACA, and the district court ordered the government to turn over the remainder of the administrative record. The government appealed, arguing that the district court was required to first consider the government's threshold argument that its DACA decision was "unreviewable as committed to agency discretion and that the Immigration and Nationality Act deprives the district court of jurisdiction."[40] The United States Court of Appeals for the 9th Circuit sided with the states, and the government appealed to the United States Supreme Court. On December 20, 2017, the U.S. Supreme Court sided with the government, concluding that the district court could not order the government to produce more of the administrative record until it had ruled on the government's threshold arguments regarding the reviewability of its decision and the court's jurisdiction.[40]

National Association For the Advancement Of Colored People and the Trustees Of Princeton University v. Donald J. Trump and the United States Of America

On November 3, 2017, Princeton University, Princeton student Maria De La Cruz Perales Sanchez, and Microsoft filed a complaint against the federal government challenging the rescission of DACA. The lawsuit argued that the termination of the program violated the Due Process Clause of the Fifth Amendment of the U.S. Constitution and the Administrative Procedure Act. The complaint stated that Princeton “will suffer the loss of critical members of its community” if DACA was terminated. Microsoft said that it had “significant interests in retaining the Dreamers it employs, and in reaping the benefits of their talent over time. It has conducted its business operations on the understanding that these individuals would continue to be eligible to work at the company.”[41][42]

On April 24, 2018, U.S. District Judge John Bates ruled that the Trump administration had to continue accepting new applications from individuals seeking benefits under DACA. Previous rulings only required the administration to process renewal requests. The order did not take effect immediately. The Trump administration had 90 days to explain its decision to end DACA.[4][43]

Bates called the administration's cancellation of DACA “arbitrary and capricious” because he determined that the administration did not explain why the program was unlawful. He wrote, “Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.”[4]

Justice Department spokesman Devin O’Malley commented on the ruling, saying, “The Justice Department will continue to vigorously defend this position and looks forward to vindicating its position in further litigation.”[4]

The Regents of the University Of California And Janet Napolitano v. United States Department Of Homeland Security and Kirstjen Nielsen

Ninth Circuit Court rules Trump administration cannot end DACA

On November 8, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the Trump administration's attempt to end DACA. Ruling that the administration's reasons for ending DACA were arbitrary, the court wrote, “DACA was a permissible exercise of executive discretion.”[5][44]

"All three judges on the Ninth Circuit panel were appointed by Democratic presidents but they didn’t all adopt the same reasoning Thursday. Two said the Trump administration had likely violated principles of administrative law, while the third thought the rescission of DACA may have been motivated by unconstitutional racial animus, in violation of the Constitution’s guarantee of equal protection," according to The Wall Street Journal.[5]

In response to the decision, Justice Department spokesman Steven Stafford said, “While we are disappointed with today’s ruling, we are pleased that the court has finally acted and that the Supreme Court now can consider our petition for review.”[5]

California Attorney General Xavier Becerra praised the ruling, saying, “Today’s decision is a tremendous victory for our young immigrant Dreamers and the rule of law. In California and across our nation, Dreamers significantly enrich our communities as scholars, entrepreneurs, first responders and much more. This fight, of course, is far from over. We will continue to defend Dreamers and DACA all the way to the Supreme Court if necessary.”[5]

Judge rules Trump administration must continue processing renewal DACA applications

On January 9, 2018, San Francisco-based U.S. District Court Judge William Alsup ordered the Trump administration to continue processing renewal applications submitted by individuals who had been granted deferred status under the Deferred Action for Childhood Arrivals (DACA) program. Alsup also ruled that the administration did not have to accept new applications for deferred status from people who had never before received the protected status. Alsup wrote, “DACA gave them a more tolerable set of choices, including joining the mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and associated hardship.”[10][45][46]

Alsup wrote that the decision of the Trump administration to end DACA, which allowed individuals who were brought to the United States as children to receive relief from being deported for a period of time if they meet certain criteria, was arbitrary. He also wrote that Attorney General Jeff Sessions' conclusion that the program was illegal appeared to be "based on a flawed legal premise."[10]

Justice Department spokesman Devin O'Malley issued the following statement saying that the administration would continue to move to end DACA: "Today’s order doesn’t change the Department of Justice’s position on the facts: DACA was implemented unilaterally after Congress declined to extend these benefits to this same group of illegal aliens. As such, it was an unlawful circumvention of Congress, and was susceptible to the same legal challenges that effectively ended DAPA. The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner. Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. The Justice Department will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation.”[10]

California Attorney General Xavier Becerra praised the ruling and discussed its potential impact on the ongoing immigration negotiations that members of Congress are conducting. He said, “Why would anyone want to negotiate a bad deal to get DACA now that it’s become clear the court is saying the Trump administration may have tried to repeal the program in an unlawful way? It's high time the Trump administration and stopped trying to load up the measure with all sorts of things that have nothing to do with the desperate plight Trump has put the Dreamers in. … The record is becoming stronger that the basis for the Trump action is unsupported by the law. I have reason to believe we have a strong chance of having the preliminary injunction remain in place."[10]

Trump also commented on the ruling, writing in a tweet, "It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA)...almost always wins before being reversed by higher courts."[10]

The order came as Congress was debating immigration policy and the future of the DACA program.

Texas v. U.S.

On May 1, 2018, Texas and six other states filed a lawsuit against the Trump administration for continuing to administer the Deferred Action for Childhood Arrivals (DACA) program. The states argued that DACA is unlawful and requires them to spend more money on healthcare, law enforcement, and education. They also argued that DACA has resulted in increased competition for jobs in their states. Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia joined Texas in filing the lawsuit in the U.S. District Court for the Southern District of Texas.[47]

Texas Attorney General Ken Paxton explained his decision to file the lawsuit, saying, "The multi-state coalition lawsuit we filed today is about the rule of law, not the wisdom of any particular immigration policy. The Constitution guarantees the American people the right to set their own immigration policies through their representatives in Congress. The federal executive branch lacks the power to unilaterally grant unlawfully present aliens lawful presence and work authorization."[48]

In the lawsuit, Paxton argued that establishing DACA through an executive order was unconstitutional. The lawsuit stated, "The policy merits of immigration laws are debated in and decided by Congress. The Executive Branch does not exercise a lawmaking role. Its duty is to take care that the law is faithfully executed — substantive immigration law and procedural administrative law alike."[48]

The lawsuit said that although the court "has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful," the states would be satisfied if the federal government was ordered to stop issuing new permits and renewing existing ones. This would lead to the end of the program within two years as existing DACA permits expire.[48]

DACA in the states

Ten states—California, Florida, Illinois, Minnesota, Nebraska, Nevada, South Dakota, Utah, West Virginia, and Wyoming—passed laws allowing DACA recipients the ability to earn professional licenses, according to the National Conference of State Legislatures (NCSL). States have chosen to pass these laws in order to fill labor shortages, utilize the talent of DACA recipients, and to benefit economically from increased income of DACA recipients, according to the NCSL.[49]

DAPA

Timeline of events related to DAPA

Background on DAPA

The Obama administration established DAPA via an administrative memo in November 2014. The policy was intended to provide deportation relief to parents who were residing in the United States without legal permission but who also had children who were U.S. citizens or lawful permanent residents (Green Card holders). If approved for DAPA relief, such individuals would have also received authorization to work in the country legally. The policy directed U.S. Citizenship and Immigration Services to exercise "prosecutorial discretion through the use of deferred action" for individuals who met the following criteria:[54]

"
  • have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
  • have continuously resided in the United States since before January 1, 2010;
  • are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
  • have no lawful status on the date of this memorandum;
  • are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and
  • present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.[23]
 ”

Twenty-six states, led by Texas, filed a lawsuit challenging DAPA, arguing it violated the Administrative Procedure Act. On November 9, 2015, the 5th U.S. Circuit Court of Appeals ruled in favor of the states and upheld a preliminary injunction from a district court against the program's expansion. The injunction halted implementation of DAPA until there was a final ruling on the case.[18][20]

On June 23, 2016, the Supreme Court of the United States issued a per curiam ruling affirming the judgment of the 5th Circuit. A per curiam opinion is one without a specific justice named as the author of the opinion. The court was evenly divided on the question, which left the injunction in place. On October 3, 2016, the Supreme Court rejected a request from the U.S. Department of Justice to rehear the case.[25][26][27]

Trump administration actions on DAPA

Trump administration rescinds DAPA

On June 15, 2017, then-U.S. Secretary of Homeland Security John Kelly rescinded DAPA, a policy that suspended the removal of individuals residing in the country without legal permission who were the parents of U.S. citizens. The policy was enacted in November 2014, during the Obama administration, but had been placed on hold by federal courts as part of a lawsuit from the state of Texas. It was never implemented. June 15 was the deadline for Texas and the Trump administration to decide how to move forward in the case; since the policy was rescinded, the case became moot.[8]

In his memo, Kelly stated,[55]

" I have considered a number of factors, including the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities. After consulting with the new Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum.[23] ”


DACA, a policy for individuals residing in the country without legal permission who were brought to the United States as children, was left intact at the time.

Trump administration officials on DACA and DAPA

President Donald Trump

caption
  • On April 1, 2018, in a series of tweets, Trump wrote, "Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release. Getting more dangerous. 'Caravans' coming. Republicans must go to Nuclear Option to pass tough laws NOW. NO MORE DACA DEAL! Mexico is doing very little, if not NOTHING, at stopping people from flowing into Mexico through their Southern Border, and then into the U.S. They laugh at our dumb immigration laws. They must stop the big drug and people flows, or I will stop their cash cow, NAFTA. NEED WALL! These big flows of people are all trying to take advantage of DACA. They want in on the act! Mexico has the absolute power not to let these large 'Caravans' of people enter their country. They must stop them at their Northern Border, which they can do because their border laws work, not allow them to pass through into our country, which has no effective border laws. Congress must immediately pass Border Legislation, use Nuclear Option if necessary, to stop the massive inflow of Drugs and People. Border Patrol Agents (and ICE) are GREAT, but the weak Dem laws don’t allow them to do their job. Act now Congress, our country is being stolen! DACA is dead because the Democrats didn’t care or act, and now everyone wants to get onto the DACA bandwagon... No longer works. Must build Wall and secure our borders with proper Border legislation. Democrats want No Borders, hence drugs and crime! Mexico is making a fortune on NAFTA...They have very strong border laws - ours are pathetic. With all of the money they make from the U.S., hopefully they will stop people from coming through their country and into ours, at least until Congress changes our immigration laws!"[56]
  • During an interview with The Wall Street Journal on January 14, 2018, Trump was asked about a potential DACA deal. He said, “I have great feeling for DACA. I think that we should be able to do something with DACA. I think it’s foolish if we don’t, they’ve been here a long time, they’re no longer children, you know. People talk of them as children, I mean some are 41 years old and older. But some are in their teens, and late teens, but nevertheless I think we should do something with DACA and I think we should do something to help people. It wasn’t their fault, their parents came in, it wasn’t their fault. So we’re in the process of trying to work something out. I hope we can do it.”[57]
  • In his official statement on the rescission of DACA, President Donald Trump (R) said that the legislative branch should write the United States' immigration laws and that he looked forward to working with Congress on the issue. He said, "The legislative branch, not the executive branch, writes these laws – this is the bedrock of our Constitutional system, which I took a solemn oath to preserve, protect, and defend. I look forward to working with Republicans and Democrats in Congress to finally address all of these issues in a manner that puts the hardworking citizens of our country first. As I've said before, we will resolve the DACA issue with heart and compassion – but through the lawful Democratic process – while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve."
  • In an interview with the Associated Press on April 21, 2017, Trump said that the deportation of individuals brought into the U.S. illegally as children was not a priority of his immigration policies. Trump said that his administration was "not after the dreamers, we are after the criminals." When asked to comment on the deportation of Juan Manuel Montes, who qualified for deferred deportation, the previous week, Trump said that Montes' case was different. He did not provide additional details.[58]
  • Trump discussed his vision for a new immigration bill on February 28, 2017, telling reporters at the White House that he wanted to permit some individuals residing in the U.S. illegally to remain in the country, working and paying taxes. The bill would not include a path to citizenship, although Trump indicated there could be an exception for children brought illegally into the country. "The time is right for an immigration bill as long as there is compromise on both sides," he said.[59]
  • In an interview with TIME released in December 2016, Donald Trump indicated that he would create some relief for individuals brought to the United States illegally as children. "We’re going to work something out that’s going to make people happy and proud. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen," he said.[60]

Attorney General Jeff Sessions

caption
  • During a press briefing announcing the rescission of the Deferred Action for Childhood Arrivals (DACA) program, Sessions said, "Simply put if we are to further our goal of strengthening the constitutional order and rule of law in America, the Department of Justice cannot defend this overreach."[2]







Members of the 115th Congress on DACA

See also: 115th Congress on immigration, 2017-2018
  • Sen. Jeff Flake (R-Ariz.): On April 1, 2018, after President Donald Trump said that he was no longer interested in a bipartisan DACA deal, Flake wrote in a tweet, "There are plenty of lawmakers on both sides of the aisle who stand ready to work with the administration on legislation to protect DACA kids who call America home. Let's do it."[61]
  • House Minority Leader Nancy Pelosi (D-Calif.): On February 26, 2018, after the U.S. Supreme Court declined to hear the Trump Administration’s challenge to a lower court ruling blocking implementation of the termination of DACA, Pelosi released the following statement: “Today’s Supreme Court action shows that rescinding DACA was not only legally questionable, but also unjust and cruel. The court’s action is welcome news, but only Congress can provide the permanent protection our Dreamers need and deserve. Republicans’ shameful refusal to take action means that every day, Dreamers are forced to live in limbo, with their wellbeing, futures and status at risk. House Republicans must listen to the overwhelming will of the American people and immediately bring a bipartisan DREAM Act to the floor. Democrats will continue to fight to protect Dreamers, who are the pride of our nation.”[62]
  • House Minority Leader Nancy Pelosi (D-Calif.): On February 7, 2018, Pelosi spoke on the House floor in support of individuals who were brought into the country without legal permission as children, also known as Dreamers, for eight hours and five minutes, setting a record for the longest speech on record in the lower chamber. She said, "Our Dreamers hang in limbo, with a cruel cloud of fear and uncertainty above them. The Republican moral cowardice must end." During the speech, she read letters from individuals who were able to obtain work permits under the Deferred Action for Childhood Arrivals (DACA) program. She broke former House Speaker Champ Clark’s (D-Mo.) record for the longest speech. In 1909, he held the floor for five hours and 15 minutes to protest tariffs.[63]
  • Sen. Tom Cotton (R-Ark.): On January 21, 2018, Cotton said, “Here’s what the president has been clear on. Here’s what I and so many Senate Republicans have been clear on: we’re willing to protect this population that is in the DACA program. If we do that, though, it’s going to have negative consequences: first, it’s going to lead to more illegal immigration with children. That’s why the security enforcement measures are so important. And second, it means that you’re going to create an entire new population, through chain migration, that can bring in more people into this country that’s not based on their skills and education and so forth. That’s why we have to address chain migration as well.”[64]
  • House Speaker Paul Ryan (R-Wis.): "It is my hope that the House and Senate, with the president's leadership, will be able to find consensus on a permanent legislative solution that includes ensuring that those who have done nothing wrong can still contribute as a valued part of this great country."[2]
  • House Minority Leader Nancy Pelosi (D-Calif.): Pelosi issued a statement that said Congress should "bring the DREAM Act to the floor for a vote without delay."[2]
  • Senator John McCain (R-Ariz.): "I will be working with my colleagues on both sides of the aisle to devise and pass comprehensive immigration reform, which will include the DREAM Act."[2]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 U.S. Citizenship and Immigration Services, "2014 Executive Actions on Immigration," accessed November 9, 2017
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 CNBC, "Trump administration ending DACA program, which protected 800,000 children of immigrants," September 5, 2017
  3. ↑ 3.0 3.1 3.2 U.S. Department of Homeland Security, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," June 15, 2012
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 The Wall Street Journal, "Judge Rules Trump Administration Must Continue DACA Program," April 24, 2018
  5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 The Wall Street Journal, "Appeals Court Rules Against Trump on Canceling DACA Protections," November 8, 2018
  6. ↑ United States Court of Appeals for the 9th Circuit, "18-15068 The Regents of the University Of California And Janet Napolitano v. United States Department Of Homeland Security and Kirstjen Nielsen," November 12, 2018
  7. ↑ 7.0 7.1 7.2 Supreme Court of the United States, "Department of Homeland Security v. Regents of the University of California," June 18, 2020
  8. ↑ 8.0 8.1 The Washington Post, "Kelly revokes Obama order shielding immigrant parents of U.S. citizens," June 15, 2017
  9. ↑ 9.0 9.1 9.2 9.3 United States District Court for the Eastern District of New York, "Batalia Vidal et al. v. Trump" Amended Memorandum & Order & Preliminary Injunction
  10. ↑ 10.0 10.1 10.2 10.3 10.4 10.5 10.6 Reuters, "U.S. judge blocks Trump move to end DACA program for immigrants," January 9, 2018 Cite error: Invalid <ref> tag; name "alsup" defined multiple times with different content Cite error: Invalid <ref> tag; name "alsup" defined multiple times with different content Cite error: Invalid <ref> tag; name "alsup" defined multiple times with different content Cite error: Invalid <ref> tag; name "alsup" defined multiple times with different content Cite error: Invalid <ref> tag; name "alsup" defined multiple times with different content
  11. ↑ United States Court of Appeals for the 9th Circuit, "18-15068 The Regents of the University Of California And Janet Napolitano v. United States Department Of Homeland Security and Kirstjen Nielsen," November 12, 2018
  12. ↑ United States Court of Appeals for the 9th Circuit, "18-15068 The Regents of the University Of California And Janet Napolitano v. United States Department Of Homeland Security and Kirstjen Nielsen," November 12, 2018
  13. ↑ The Hill, "Federal judge says Trump must fully restore DACA," August 3, 2018
  14. ↑ United States Supreme Court, "Order List," February 26, 2018
  15. ↑ Texas Attorney General, "DACA Letter," June 29, 2017
  16. ↑ 16.0 16.1 16.2 16.3 U.S. Department of Homeland Security, "Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)," September 5, 2017
  17. ↑ Supreme Court of the United States, "United States et al v. Texas et al," June 23, 2016
  18. ↑ 18.0 18.1 18.2 5th U.S. Circuit Court of Appeals, "State of Texas et al v. USA et al (2015)," November 25, 2015
  19. ↑ The New York Times, "Dealt Setback, Obama Puts Off Immigrant Plan," February 17, 2015
  20. ↑ 20.0 20.1 20.2 20.3 Attorney General of Texas, "Texas v. United States," December 3, 2014
  21. ↑ 21.0 21.1 U.S. Citizenship and Immigration Services, "Expanded DACA," accessed September 20, 2017
  22. ↑ U.S. Citizenship and Immigration Services, "Consideration of Deferred Action for Childhood Arrivals (DACA)," accessed December 21, 2016
  23. ↑ 23.0 23.1 23.2 23.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  24. ↑ U.S. Citizenship and Immigration Services, "Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (June 30)," accessed November 9, 2017
  25. ↑ 25.0 25.1 Supreme Court of the United States, "United States et al v. Texas et al," June 23, 2016
  26. ↑ 26.0 26.1 The Washington Post, "Equally divided Supreme Court affirms lower court decision on Obama immigration policies," June 23, 2016
  27. ↑ 27.0 27.1 CNN, "Supreme Court rejects Obama administration request on immigration orders," October 3, 2016
  28. ↑ The Wall Street Journal, "'Dreamer’ Talks Aim to End Budget Impasse," February 4, 2018
  29. ↑ The Hill, "Senate rejects bipartisan measure as immigration votes begin," February 15, 2018
  30. ↑ Toomey.Senate.gov, "Toomey Introduces Amendment to End Dangerous Sanctuary City Policies," February 13, 2018
  31. ↑ The Hill, "Senate Dems block crackdown on sanctuary cities," February 15, 2018
  32. ↑ Politico, "Senate immigration deal on life support," February 14, 2018
  33. ↑ The Hill, "Senate rejects centrist immigration bill after Trump veto threat," February 15, 2018
  34. ↑ The Hill, "Senate rejects Trump immigration plan," February 15, 2018
  35. ↑ Fox News, "President Trump's statement on DACA," September 5, 2017
  36. ↑ 36.0 36.1 Attorney General of New York, "State of New York et al. v. Trump et al," September 6, 2015
  37. ↑ United States Court of Appeals for the 2nd Circuit, "In re Kirstjen M. Nielsen, Secretary of Homeland Security," December 27, 2017
  38. ↑ The Los Angeles Times, "California politics updates: California to sue Trump administration for DACA decision," September 12, 2017
  39. ↑ California Office of the Attorney General, "California et al. v. Department of Homeland Security et al," September 11, 2017
  40. ↑ 40.0 40.1 United States Court of Appeals for the 9th Circuit, "United States v. Regents of the University of California," December 21, 2017
  41. ↑ Princeton.edu, "Princeton, a student and Microsoft file federal lawsuit to preserve DACA," November 3, 2017
  42. ↑ Princeton.edu, "Trustees Of Princeton University v. the United States Of America," November 3, 2017
  43. ↑ USA Today, "Another federal judge rules against Trump move to end DACA," April 24, 2018
  44. ↑ United States Court of Appeals for the 9th Circuit, "18-15068 The Regents of the University Of California And Janet Napolitano v. United States Department Of Homeland Security and Kirstjen Nielsen," November 12, 2018
  45. ↑ United States District Court for the Northern District of California, "The Regents of the University Of California And Janet Napolitano v. United States Department Of Homeland Security and Kirstjen Nielsen," January 9, 2018
  46. ↑ Reuters, "U.S. judge blocks Trump move to end DACA program for immigrants," January 9, 2018
  47. ↑ Politico, "Texas, six other states call for immediate halt to Dreamer program," May 2, 2018
  48. ↑ 48.0 48.1 48.2 USA Today, "Texas Attorney General Ken Paxton files 7-state lawsuit seeking to end DACA," May 1, 2018
  49. ↑ National Conference of State Legislatures, "Professional And Occupational Licenses For Immigrants," January 17, 2017
  50. ↑ Supreme Court of the United States, "United States et al v. Texas et al," June 23, 2016
  51. ↑ 5th U.S. Circuit Court of Appeals, "State of Texas et al v. USA et al (2015)," November 25, 2015
  52. ↑ The New York Times, "Dealt Setback, Obama Puts Off Immigrant Plan," February 17, 2015
  53. ↑ U.S. Citizenship and Immigration Services, "You may be able to request DAPA," accessed September 20, 2017
  54. ↑ U.S. Department of Homeland Security, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents," November 20, 2014
  55. ↑ U.S. Department of Homeland Security, "Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA")," June 15, 2017
  56. ↑ Twitter, "Donald J. Trump," April 1, 2018
  57. ↑ The Wall Street Journal, "Transcript of Donald Trump Interview With The Wall Street Journal," January 14, 2018
  58. ↑ Associated Press, "The Latest: Trump says charges against Assange would be 'OK,'" April 21, 2017
  59. ↑ CNN, "Trump envisions bill allowing many immigrants to stay in US," March 1, 2017
  60. ↑ TIME, "2016 Person of the Year: Donald Trump," accessed December 8, 2016
  61. ↑ The Hill, "Flake: 'Plenty' of lawmakers want to work with Trump on DACA," April 1, 2018
  62. ↑ DemocraticLeader.gov, "Pelosi Statement on Supreme Court Refusal to Expedite Trump DACA Challenge," February 26, 2018
  63. ↑ The Hill, "Pelosi sets record for longest speech in House history," February 7, 2018
  64. ↑ NBC News, "Meet the Press -January 21, 2018," January 21, 2018
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