The Trump administration indicated on Tuesday that it will allow Deferred Action for Childhood Arrivals participants to renew their status for one year as it conducts a new review of the deportation relief program, but will continue to refuse new applications, which principally affects undocumented immigrants who would age into the program when they turn 15.
The DACA program has been of wide interest to the education community as it allows young people, so-called Dreamers, to legally attend college or work. In June, the U.S. Supreme Court blocked efforts by President Donald Trump’s administration to unwind the program of deportation relief affecting as many as 700,000 people. Higher education institutions, teachers’ unions, and other education groups had joined the fight on behalf of DACA recipients.
During the three-year legal effort against the administration’s plan to rescind the program promulgated through executive action under President Barack Obama, various lower-court actions allowed DACA recipients to continue to renew their status for two-year periods but closed the door on new applicants.
In a July 28 memorandum, Acting Secretary of Homeland Security Chad Wolf said he was withdrawing the administration’s 2017 and 2018 memos that sought to rescind DACA (efforts which the Supreme Court held were done in an “arbitrary and capricious manner” in violation of federal administrative procedure law). Wolf will conduct a “thorough consideration of how to address DACA in light of the Supreme Court’s decision, and he suggested “there are several reasons of enforcement policy that may warrant the full rescission” of the policy.
“Pending my full reconsideration of the DACA policy, I direct DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA ... and to shorten DACA renewals consistent with the parameters established in this memorandum,” Wolf said.
The renewal period for DACA recipients will thus be shortened from two years to one year.
“Shortening renewal periods granted during this reconsideration period will have the potential benefit of significantly lessening the lasting effects of the DACA policy if I ultimately decide to rescind it,” Wolf said in the memo.
Wolf took note of some of the “reliance interests” advanced in support of DACA recipients, such as work authorization and Social Security, as well as the interests of other parties in the program, such as schools, employers, and employees of DACA recipients.
Chief Justice John G. Roberts Jr., in his opinion for the court in Department of Homeland Security v. Regents of the University of California had noted such reliance interests in ruling against the rescission of the program.
“The consequences of the rescission, [DACA supporters] emphasize, would radiate outward to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them,” Roberts wrote in the 5-4 decision on June 18.
Wolf said in his memo that his decision to keep the program closed to new participants was supported by the fact that those who had not yet received DACA status did not have any such reliance interests.
“Whatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking, with regard to aliens who have never before received deferred action pursuant to the policy,” Wolf said.
Wolf’s stance on keeping DACA closed to new participants appears, on its face, to conflict with an order from a federal district judge in Greenbelt, Md., on July 17 to the administration to begin processing new applications.
But Politico quoted an unnamed Trump administration official as saying the new memo was an intervening action that would allow lower-court orders keeping the program closed to new participants to remain in effect.
When the official was asked whether he expected legal challenges to the decision to keep the program closed to new applicants, he said, according to Politico, “Yes, of course.”
A version of this news article first appeared in The School Law Blog.