U.S. Government slammed with multiple DACA Lawsuits

President Orders End of DACA in Six Months, With Mixed Signals About Future for ‘Dreamers’; Two Lawsuits Challenge Program’s Termination

On September 5, 2017, President Donald Trump ordered the end of Deferred Action for Childhood Arrivals (DACA), an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as “Dreamers.” He said that his administration’s position is that DACA was not statutorily authorized and therefore was an unconstitutional exercise of discretion by the executive branch. The order takes effect in six months. The rescission affects nearly 800,000 DACA recipients.

Based on “guidance from Attorney General Sessions and the likely result of potentially imminent litigation,” the Department of Homeland Security’s Acting Secretary Elaine Duke issued a memorandum on September 5 formally rescinding the Obama administration’s June 15, 2012, memorandum that created DACA. Ms. Duke explained, “As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation, or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.” Ms. Duke said that “no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after [September 5, 2017] will be acted on.”

President Trump’s statement about current beneficiaries not being affected for 6 months was slightly less absolute; he said that current DACA recipients “generally” will not be affected: “DHS’s enforcement priorities remain in place. However, absent a law enforcement interest—which is largely the standard that has been in place since the inception of the program—the Department will generally not take actions to remove active DACA recipients.” He said that renewal applications for DACA employment authorization documents (EADs) properly filed and accepted by October 5, 2017, for people whose current EADs expire between September 5, 2017, and March 5, 2018, will be processed. He also said that all pending applications for advance parole by DACA recipients “will be closed and associated fees will be refunded.” In a related tweet on September 7, 2017, President Trump said, “For all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about – No action!”

Hinting that the end of the DACA program might not necessarily be the end of the line for the Dreamers, President Trump also tweeted on September 5, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!”

On September 6, 2017, the attorneys general of more than a dozen states and the District of Columbia sued the government to stop the DACA program’s rescission. The lawsuit argues that the repeal of President Obama’s DACA order violates the Administrative Procedure Act, is motivated by discrimination against Mexicans, and violates due process. The University of California filed a similar suit on September 8, 2017, against the Trump administration for violating the rights of the university and its students by rescinding DACA on “nothing more than unreasoned executive whim.”

The White House statement is at https://www.whitehouse.gov/the-press-office/2017/09/05/president-donald-j-trump-restores-responsibility-and-rule-law. The DHS statement is at https://www.dhs.gov/news/2017/09/05/rescission-deferred-action-childhood-arrivals-daca. A related USCIS statement is at https://www.uscis.gov/daca2017. Attorney General Sessions’ letter to Acting Secretary Duke is at https://www.dhs.gov/publication/letter-attorney-general-sessions-acting-secretary-duke-rescission-daca. Acting Secretary Duke’s memorandum is at https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. Frequently asked questions are at https://www.dhs.gov//news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca. The complaint by the various state attorneys general is at https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al_-_17cv5228.pdf. The University of California’s complaint is at http://universityofcalifornia.edu/sites/default/files/UC-DACA-Complaint.pdf.