DHS Secretary Rescinds DAPA; DACA Not Affected for Now

Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders, commonly known as DAPA, did not go too far after it was proposed by President Obama in 2014. Recently, DHS Secretary Kelly finally put the nail in the coffin.

On June 15, Secretary Kelly signed an agency memorandum rescinding Obama's November 20, 2014 memorandum, which created the DAPA program. According to Secretary Kelly, after consulting with the Attorney General, there is no viable way to litigate the program in court.

Under the DAPA proposal, undocumented parents of U.S. Citizens and green card holders can stay in the U.S. for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks, and pay back income taxes.

The DAPA program never went into effect after it was proposed. Twenty-six (26) states filed a lawsuit to block the implementation of DAPA. The states argued, among other things, that under DAPA the States would incur additional costs to produce driver's licenses for DAPA beneficiaries. Consequently a Federal District Court judge in Texas granted an order of temporary injunction against the executive of the DAPA program in 2015. The Obama Administration appealed to the 5th Circuit Court of Appeals, which also sided with the states. The case went to the U.S. Supreme Court. In a 4-4 decision, the Supreme Court affirmed the lower court's decision. What all this means was that the DAPA program could not be implemented.

Secretary Kelly's rescission of DAPA should not come as a surprise. The Trump Administration has long been vocal against Obama's immigration policy and executive actions favoring the undocumented. In fact, rescission was not even necessary here. By not filing additional pleadings with the court, the program would remain dead.

The good news is that Secretary Kelly's memo does not affect the sister program of DACA (Deferred Action for Childhood Arrivals). DACA allows individuals who were brought to the U.S. illegally as children and who have completed their high school education to apply for temporary legal status to live and work in the U.S. The Frequently Asked Questions of the Rescission memo specifically confirm that the DACA program will not be affected by Secretary Kelly's memo. DACA recipients will continue to be able to apply for their two-year extension and employment authorization documents (EAD). An estimated 800,000 individuals in the U.S. are eligible for DACA benefits.

However, some observers are not optimistic about the future of DACA given the Trump Administration's tough stance against illegal immigration. Although President Trump has expressed sympathy for childhood arrivals, and DACA program remains to be in effect for now, there has been reports that some DACA beneficiaries are targeted by ICE. For example, ICE has started to initiate deportation proceedings against DACA beneficiaries who have violations including DUIs. Hence, it is important for these beneficiaries to live a responsible life, pay taxes and avoid any violations of law.