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Sec. Kelly: Court Challenges Could Threaten DACA

Department of Homeland Security (DHS) Secretary John Kelly told the Congressional Hispanic Caucus (CHC) in a closed-door meeting last week that the Differed Actions for Childhood Arrivals (DACA) program that protects young immigrants from deportation may not survive if challenged in court.

Kelly’s notice follows a letter sent to Attorney General Jeff Sessions by Texas Attorney General Ken Paxton and officials from 10 other states in late June threatening to sue the federal government if it does not repeal DACA—an Obama-era initiative that grants roughly 800,000 immigrants protection from deportation and work permit—by September 5.

They argued that if the expansion of DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which protects unauthorized parents of Americans or lawful permanent residents, was successfully challenged in a Texas district court, continuation of DACA is also unlawful.

“If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or expanded DACA permits in the future, then the plaintiffs that successfully challenged DAPA and expanded DACA will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas,” the letter states. “Otherwise, the complaint in that case will be amended to challenge both the DACA program and the remaining Expanded DACA permits.”

CHC members pressed Kelly about maintaining DACA. DHS spokesman David Lapan confirmed that Kelly doubts that DACA will survive the court, after discussing it with different attorneys within and outside of DHS.

“This is what he’s being told by different attorneys, that if it goes to court it might not survive,” DHS spokesman David Lapan said. Although DACA’s fate is up to Congress, if it does not pass a bill, Lapan added that “they’re leaving it in the hands of the courts to make a decision.”

During his campaign, President Donald Trump promised to rescind DACA. But since taking office, Trump has wavered over the promise, stating that DACA beneficiaries, known as “DREAMers,” “shouldn’t be very worried.”

Last month, DHS posted on its website that “No work permits will be terminated prior to their current expiration dates,” adding to the administration’s uncertain intentions for DACA. Kelly’s and Lapan’s statements now suggest that the administration likely won’t defend DACA if it is challenged in court.

At the CHC meeting and in previous hearings, Kelly has urged Congress to finalize a solution concerning DACA. Although the officials Kelly met with have been pushing for the Bridge Act—bipartisan legislation in the House and Senate that would provide legal status for DACA recipients—Kelly has not endorsed it.

As CHC continues to fight for DACA, it has also stood in opposition to other immigration policies in Congress, including the No Sanctuary for Criminals Act and Kate’s Law, which the House passed in late June to combat sanctuary cities and maximize penalties on returning criminal unauthorized immigrants. The caucus has also stood in opposition to the administration’s proposed border wall on the US-Mexico border.

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The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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