Rescission of DACA and Next Steps for DACA Recipients

The Deferred Action for Childhood Arrivals (DACA) program is being rescinded by the administration of President Donald J. Trump, as announced by U.S. Attorney General Jeff Sessions on September 5, 2017.

A Press Release from the U.S. Department of Homeland Security (DHS) cited a letter from U.S. Attorney General Sessions, dated September 4, 2017, in which he stated that DACA is an “open-ended circumvention of immigration laws, ”that lacks statutory authority and constitutes “an unconstitutional exercise of authority by the Executive Branch.”

In the official press announcement, U.S. Attorney General Sessions stressed that President Trump as well as the Department of Justice believe that immigration issues can and should be addressed through congressional action, not executive action.

An earlier statement by DHS Acting Secretary Elaine Duke echoed the U.S. Attorney General’s position, stating that, “[t]he Department of Justice has carefully evaluated the program's constitutionality and determined it conflicts with our existing immigration laws." Acting DHS Secretary Duke then issued a formal Memorandum effective September 5, 2017, officially rescinding the June 15, 2012, Memorandum that created the DACA program entitled, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.”

In the interest of minimizing disruptions and to allow time for Congress to work on a solution for Dreamers, DHS made clear that they will “execute a wind-down process”of the DACA program during the next six months, with an end date for DACA of March 5, 2018.

Specifically, effective immediately:

  • USCIS will adjudicate, on a case-by-case basis, properly filed initial DACA requests that were accepted and pending before September 5, 2017.
  • After September 5, 2017, no new applications for initial DACA will be accepted by U.S. Citizenship and Immigration Services (USCIS). 
  • USCIS will adjudicate, on a case-by-case basis, properly filed DACA renewal applications and associated I-765 Applications for Employment Authorization that were accepted before September 5, 2017.
  • Current DACA recipients whose period of deferred action and Employment Authorization Document (EAD Card) will expire before March 5, 2018, have until October 5, 2017, to apply to renew their DACA and EAD; applications will be adjudicated on a case-by-case basis. 
  • USCIS will reject DACA renewal applications filed after October 5, 2017.
  • Advance Parole applications to travel outside the U.S will no longer be granted.  USCIS will administratively close pending applications for advance parole, and will refund associated filing fees. 
  • U.S. Customs and Border Protection (USCBP) will generally honor stated validity periods in advance parole documents, but it retains its authority to determine the admissibility of any person presenting advance parole documents. 
  • Current DACA recipients’ EAD Cards and grants of deferred action will not be automatically revoked. Deferred action and employment authorization for current DACA recipients will remain valid until the expiration date shown on the current EAD Card. This means that current employment authorization cards will not immediately expire. Please look at your EAD card to check the expiration date.
  • USCIS will continue to exercise discretionary authority to terminate deferred action at any time when immigration authorities determine that such action is warranted. 

Protection for current DACA recipients will end when their prior grants of deferred action and EAD Cards (work permits) expire in the coming months and years.  In addition, DHS provided the following clarification in its Frequently Asked Questions (FAQs), published September 5, 2017:

“Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred. When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment.”

Furthermore, DHS will not be proactively referring former DACA recipients to U.S. Immigration and Customs Enforcement (ICE) for removal (deportation), unless these individuals meet other criteria for the prioritization of removal proceedings:

“Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA).

We will continue to monitor this developing story and provide updates as new information becomes available.

If you or anyone you know is a DACA recipient and needs legal advice to determine what other legal immigration options they may have and how to defend themselves if they are placed in removal (deportation) proceedings, please contact our office at (608) 270-5550 or send us an email.  

Given that the fate of the Dreamers is now squarely in the hands of Congress, we urge everyone to call on their members of Congress to request the passage of the Dream Act of 2017.  The number to call is: (202) 224-3121 for the U.S. Capitol Switchboard. 

To locate your member of Congress, please see the following links:

U.S. Senate: www.senate.gov

U.S. House of Representatives: www.house.gov

You can also use the following link in order to Take Action: Tell Congress Now is the Time to Protect Dreamershttp://www.aila.org/takeaction#/40

For more information about the rescission of DACA, please refer to the following:

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