The Nov. 20, 2014 DAPA memorandum, which to date has not been implemented, directed U.S. Citizenship and Immigration Services (USCIS) “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis” to certain undocumented parents who have “a son or daughter who is a U.S. citizen or lawful permanent resident” and satisfy a number of qualifying criteria, including: continuously residing in the U.S. since before Jan. 1, 2010; having no lawful immigration status on the date of application; and not falling within the Secretary of Homeland Security’s enforcement priorities, amongst other requirements. The DAPA memorandum also addressed enhancements to the Deferred Action for Childhood Arrivals (DACA) program.
Shortly after the issuance of the Nov. 20, 2014 DAPA memorandum (and prior to implementation), twenty-six states challenged the policies of the memorandum in the U.S. District Court for the Southern District of Texas. In Feb. 2015, the district court preliminarily enjoined the policies nationwide, determining that states would likely succeed on their claim that DHS failed to comply with notice-and-comment rulemaking procedures in violation of the Administrative Procedure Act. The Fifth Circuit Court of Appeals affirmed. The Supreme Court then affirmed the Fifth Circuit’s ruling by a divided vote (4-4), without issuing a substantive opinion. As of the issuance of the June 15 rescission memorandum, litigation on the DAPA memorandum was still pending before the district court.
Citing to President Trump’s Jan. 25, 2017 Executive Order No. 13768, “Enhancing Public Safety in the Interior of the United States,” the June 15 rescission memorandum, signed by John F. Kelly, Secretary of Homeland Security, states that, after consultation with the Attorney General and due to new immigration enforcement priorities, the Secretary has decided to rescind the Nov. 20, 2014 DAPA memorandum.
Though the Nov. 2014 DAPA memorandum has been rescinded, the June 2012 Memorandum Providing for Deferred Action for Childhood Arrivals (DACA) remains in effect. DACA allows certain individuals who entered the United States before the age of 16, and have not been convicted of a felony or major misdemeanor (or three minor misdemeanors), to remain in the country. DACA applicants must show that as of June 15, 2012, they were under the age of 31 and physically in the United States without lawful status. DACA also requires individuals to have continuously resided in the United States from June 15, 2007 to present, and show they are enrolled in school, or graduated high school (or obtained a GED), or were honorably discharged from the U.S. Armed Forces or Coast Guard. On June 15, 2017, Frequently Asked Questions (FAQs) on the rescission memorandum were posted on the Department of Homeland Security’s website, confirming that DACA applications will continue to be accepted and DACA recipients who were issued three-year extensions prior to the district court’s injunction will not be affected by the rescission of the Nov. 2014 DAPA memorandum. Further, the FAQs state that such applicants will be eligible to apply for a two-year extension upon their expiration and no DACA-based work permits will be terminated prior to their current expiration dates.
Greenberg Traurig will continue to monitor developments and provide updates in connection with DACA.