On June 15, 2017, the Department of Homeland Security (DHS) issued a memorandum that formally ended litigation over former President Barack Obama’s 2014 program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and the expansion of DACA. The expansion of DACA had the potential to expand eligibility requirements for the original Deferred Action for Childhood Arrivals (DACA) program by allowing eligible individuals to qualify if they have lived in the United States since January 1, 2010, regardless of age. The DAPA program had the potential to temporarily remove the threat of deportation for an estimated 4 million undocumented parents of children who were U.S. citizens or lawful permanent residents. Significantly, the new memorandum explicitly preserved the June 15, 2012 memorandum issued by the Obama administration, which created the original DACA program. Thus, the original DACA program is preserved for now.

The administration’s rescission of the DAPA and expanded DACA programs comes as no surprise given the previous statements of President Donald Trump’s administration about immigration enforcement. Furthermore, the DAPA and DACA+ programs were never formally implemented; a federal judge issued a preliminary injunction blocking the program in 2015 after a legal challenge from 26 states. The case eventually made its way to the Supreme Court, which deadlocked 4-4 over the issue and kept the injunction in place. Although further litigation may have explicitly determined the constitutionality of the DAPA program, Secretary John Kelly’s memorandum effectively ends any potential for DAPA and expanded DACA to come into effect under the current Administration, fulfilling a campaign promise by President Trump.

The new memorandum explicitly states that DACA, in its original 2012 incarnation, remains untouched. Since the new administration took office, renewal of expiring DACA permits appear to be granted as before. From January through March of this year, more than 17,000 new approvals have been issued and more than 107,000 DACA recipients have had their temporary work permits renewed. The rescission of DAPA and expanded DACA could pave the way for a congressional bill, as there is bipartisan support to resolve the uncertain legal status regarding DREAMers, a commonly-used term describing undocumented individuals who came to the United States as children.

Nevertheless, the administration once again made the situation murky by suggesting the following day that it had not made a “long-term” decision on the future of the DACA program.

Client Insights

The DHS memorandum represents the most explicit statement regarding DACA to date, although the contradictory messaging the following day suggests that the current administration’s internal debate over the long-term future of so-called DREAMers has not been settled. Clients employing DACA recipients and others enrolling DACA recipients as students are advised to remain vigilant regarding enforcement actions targeting DACA recipients and any changes in policy that may impact their work authorization.

Co-authored by Daniel Kim who will be a second-year law student at Notre Dame Law School this fall and is a Franczek Radelet LEADS Fellow.