In a blow to current and hopeful Deferred Action for Childhood Arrivals (DACA) recipients, Acting Secretary of Homeland Security Chad Wolf this week issued a memo that curtails certain aspects of the program while his department further considers whether to rescind or modify the program at a later date.
The memo, formally titled Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” was issued in response to a Supreme Court ruling that vacated the Department of Homeland Security’s (DHS) 2017 rescission of the DACA program based on procedural missteps by the agency.
Since the Supreme Court essentially returned DACA back to the status quo that existed before September 5, 2017, DACA supporters had hoped it would reopen the program to new applicants. Since 2017, current DACA recipients can renew their status, but no new applications have been accepted. After the Supreme Court decision, a federal district court in Maryland ordered DHS to start accepting new applicants.
However, Wolf stated in the memo that he is taking several immediate steps while further considering the fate of the program, including an announcement that no new applications would be accepted. This includes applications submitted to DHS after the Supreme Court decision and before the memo’s issuance.
In addition, Wolf said that DACA recipients could only renew their terms for one year, rather than for two years as is the practice now. Finally, DHS will also reject all DACA recipients’ applications for advance parole, which allows them to travel outside the country, “absent exceptional circumstances.”
A final decision on the program is not expected until after the November elections. The memo attempts to avoid the procedural missteps that led to the Supreme Court’s ruling by delineating the reasons for the immediate actions being taken and showing that any “reliance interests” that DACA recipients had formed were taken into consideration. The reasons stated included enforcement policy concerns and the message that retaining the program might send to potential illegal immigrants, even though they would not qualify for DACA.
The memo also suggests that rescinding DACA may force Congress to finally pass immigration reform legislation.
There will potentially be litigation challenging whether DHS has complied with administrative law this time around, but relief through that channel would take some time. The administration’s action may also make this issue more prominent in the presidential election.