Deferred Action for Childhood Arrivals (DACA) Rescinded

September 5, 2017 -- On September 5, 2017, at the behest of Attorney General Jeff Sessions, the Acting Secretary of the U.S. Department of Homeland Security (DHS) released a memo rescinding the Deferred Action for Childhood Arrivals (DACA) program, which had provided some undocumented immigrants who were brought to the U.S. as children relief from deportation and permission to apply for work permits.

DACA was established in June 2012 by President Barack Obama to grant deferred action to undocumented individuals who came to the U.S. under the age of 16 and met certain other conditions, such as residing continuously in the U.S. since 2007; being in school, having graduated high school, or having been honorably discharged from the military; and not having been convicted of a felony or serious misdemeanor.

In November 2014, President Obama attempted to expand DACA to a wider range of ages and arrival dates and lengthen the period of deferred action and work authorization from two years to three, and also to establish a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would have provided deferred action to the undocumented parents of certain U.S. citizens or lawful permanent residents.

Prior to the implementation of DAPA, however, twenty-six states—led by Texas—challenged these policies in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide. The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program was not allowed under the Immigration and Nationality Act, since the Act did not intend for deferred action to be applied to a whole group of people at once.

The case reached the Supreme Court, where it was decided with an equally divided 4-4 vote, affirming the Fifth Circuit's ruling. On June 15, 2017, considering the likelihood of success of the ongoing litigation, then Secretary John F. Kelly rescinded DAPA and the expansion of DACA—but temporarily left in place the original DACA program.

Then, 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 noted that if DHS did not rescind DACA by September 5, 2017, the States would seek to amend the DAPA lawsuit to include a challenge to DACA.

The Attorney General sent a letter to DHS on September 4, 2017 stating that the DACA program was a "circumvention of immigration laws" and that litigation against DACA would likely have the same result as against DAPA. In light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion.

As a result, on September 5, 2017, Acting DHS Secretary Elaine C. Duke ended DACA. DHS will no longer accept new applications for DACA, and will only accept renewal applications for DACA status and work permits from current beneficiaries until October 5, 2017.

Specifically, 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 DHS as of today (September 5, 2017).
Reject all DACA initial requests and associated applications for Employment Authorization Documents filed after today (September 5, 2017).
Adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries whose benefits will expire between now and March 5, 2018, if submitted by October 5, 2017.
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 the September 5, 2017 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.
Administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program and refund all associated fees.