The Department of Homeland Security said Tuesday that, in the wake of the Supreme Court’s June halt of the administration’s attempt to rescind the Deferred Action for Childhood Arrivals program, it will reject all new DACA requests and limit the length of renewals while the department undertakes “thorough consideration of how to address DACA in light of the Supreme Court’s decision.”
The Trump administration announced in 2017 that the program, which gives legal status to immigrants who were brought to the country illegally as children and meet certain requirements, would be ended, setting off lawsuits and sparking fears among about 700,000 DACA beneficiaries that they would be deported.
Last month, the Supreme Court — with Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the majority — found that DHS did not go about rescinding DACA the right way. “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” Roberts wrote for the majority.
Roberts wrote that “whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.” Attorney General Bill Barr told Acting Homeland Security Secretary Chad Wolf in a June 30 letter that he was rescinding former Attorney General Jeff Sessions’ determination that DACA was unlawful “because l do not wish to maintain a determination as the Attorney General regarding DACA that might constrain the discretion you otherwise possess as Acting Secretary of Homeland Security to consider whether and how to rescind DACA.”
“In other words, I wish to wipe the slate clean to make clear beyond doubt that you are free to exercise your own independent judgment in considering the full range of legal and policy issues implicated by a potential rescission or modification of DACA, as contemplated by the Supreme Court,” Barr added.
Roberts wrote in the Supreme Court ruling that “we do not decide whether DACA or its rescission are sound policies.”
“We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” he added. “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
In a memo to Acting Customs and Border Protection Commissioner Mark Morgan, Acting Immigration and Customs Enforcement Director Matthew Albence, and U.S. Citizenship and Immigration Services Deputy Director of Policy Joseph Edlow, Wolf said DHS would immediately reject all initial DACA requests, adjudicate pending requests, limit any work authorization granted under the policy to one year, and not revoke current authorizations before their expiration dates unless “immigration officials determine termination or denial of deferred action is appropriate.”
“To further mitigate my concerns, I have determined that these changes should apply both to DACA and advance parole requests submitted after the issuance of this memorandum and requests that are currently pending before the agency,” Wolf wrote. “Since the issuance of the Supreme Court’s decision, DHS has, on an interim basis, generally held properly submitted initial requests for DACA in anticipation of potential policy changes. Since July 24, DHS has likewise, on an interim basis, held all requests for advanced parole from current DACA recipients.”
“Nothing in the Napolitano Memo purports to preclude me from exercising my enforcement discretion to make these changes on an interim basis while I consider whether to make more substantial changes on a permanent basis. Even under the Napolitano Memo, no aliens had a legal entitlement to receive DACA—much less a legal entitlement to a particular renewal period,” he added. “Nor can aliens with pending requests assert any meaningfully greater reliance interests in their initial or continued enjoyment of the policy and the attendant benefits than aliens who submit such requests after the issuance of this memorandum.”
Wolf said in a statement that “as the Department continues looking at the policy and considers future action, the fact remains that Congress should act on this matter.”
“There are important policy reasons that may warrant the full rescission of the DACA policy,” he added.
Hispanic National Bar Association president Irene Oria said Wolf’s action “feels cruel” in that “only weeks after the U.S Supreme Court affirmed legal protections for DACA recipients, DHS is attempting to curtail those same protections.”
“Despite the Supreme Court’s decision in June and a subsequent federal court’s order restoring full DACA protections to current and potential beneficiaries, DHS continues to jeopardize young immigrants and their families by reinjecting uncertainty around their immigration status, once again leaving them vulnerable to deportation,” Oria said.
She likewise called on Congress to act to give DACA beneficiaries the opportunity to obtain permanent legal status and “give their families the peace of mind they have earned.”
House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) said DHS should “stop wasting time coming up with new and cruel ways to throw Dreamers’ lives into chaos.”
