With New DHS Memo DACA Downsized, Multiple Applications Rejected Immediately

Following U.S. Supreme Court ruling, Homeland Security alters DACA program

The Department of Homeland Security announced July 28 it is making significant changes to how it handles DACA applications.

The department said it will reject all initial requests for the Deferred Action for Childhood Arrivals program, all applications for employment authorization, new and pending requests for advanced parole outside exceptional circumstances and limiting the period of renewed deferred action to a single year, according to a DHS memorandum.

“As the Department continues looking at the policy and considers future action, the fact remains that Congress should act on this matter,” Acting Secretary of Homeland Security Chad Wolf said in a statement. “There are important policy reasons that may warrant the full rescission of the DACA policy.”

The Wolf memo outline four areas of concern: whether as a policy matter continuing “a broad, class-based deferred-action policy like DACA should be resolved by Congress;” whether any discretion to “not enforce the law or afford deferred action” should be rarely exercised and only on a case-by-case basis; whether the existence of a program such as DACA may send “mixed messages” about DHS’s enforcement of immigration laws; and concern that programs like DACA existing “may encourage individuals to take a perilous journey to this country, needlessly endangering children.”

Wolf’s memo comes after the U.S. Supreme Court’s June ruling in DHS v. Regents of the University of California, which ruled that DHS’s decision to rescind DACA was “arbitrary and capricious.” The case grew from the 2017 attempt by then Acting Secretary of Homeland Security Elaine Duke to rescind the 2012 memo by another previous acting secretary that established DACA and a plan for phasing out of the program.

The Supreme Court decision in June was clear. The mandate said the recission of DACA was unlawful and, therefore, the program should be reinstituted as it was to the recission meaning the accepting of applications, renewals and advanced parole applications, Ashley Harrington, managing attorney of the Rocky Mountain Immigration Advocacy Network’s Children’s Program, said.

RMIAN is not alone in its stance against the order. The Colorado Immigrant Rights Coalition said in a statement that “by refusing to allow new, initial applications and to open up advance parole for current DACA recipients, Trump and DHS are circumventing the Supreme Court decision on DACA.”

When the July memo was released, Harrington said many had already applied due to the court’s ruling. She added that the memo “basically says we’re going to rescind it again.”

“It is devastating how this administration has ignored and contravened an order from the highest court in the land and done exactly the opposite,” she said. 

As the memo itself mentions, DACA is only a small part for these individuals to have work authorization. At any time, this program could be taken away, and at any time someone could be placed in removal proceedings, she said.

On a larger scale, this memo means that many young people who had not enrolled in DACA —because of age disqualifications, out of fear or because they couldn’t provide the filing fee — have had their hopes dashed by this administration, she said. The U.S. Supreme Court decision in June had given hope to many, and she noted that many individuals were in the process of applying to the DACA program.

The criteria for DACA “were overly broad, and not intended to apply to children,” the DHS website states. However, Harrington said that by definition the DACA program is for young people. 

At DACA’s inception in 2012, you had to be 15 to apply, unless in removal proceedings, and must be under 31. Since that time, some of those have aged, but by definition the program is targeted at younger people. The requirements of the program included that individuals came to the U.S., and began residing in the U.S., prior to the age of 16. At that time, there were many children too young to apply, and are now were able, cannot enter the program, Harrington added. 

“This administration has said ‘No, if you didn’t have one before, you cannot renew, so you’re left out of this program just because you were not old enough at the time,’” Harrington said, adding there was a similar situation for those approaching 31.

While the new memo halts new applications and rejects those pending, renewals are allowed over a one-year period instead of the previous two years, Harrington explained. Advanced parole requests, which are applications allowing a people to travel away from the U.S. and re-enter, will also be rejected outside extraordinary circumstances.

For those previously approved, Harrington said their current work authorization is still valid. For example, RMIAN helped many DACA participants file prior to the SCOTUS case this summer. If someone had a year left, they applied to have an additional two, and those who just received authorization in June of this year until June of 2022, will still have valid authorization. As 2022 approaches, and if things look the same as they do currently, they still would be able to apply for renewal for a single year.

“It’s not cutting off anyone’s current authorization — it just means that when they renew, they’re paying the same fee [of] $495 for a single year,” Harrington said, adding that some families in the DACA program may be faced with choosing between rent or DACA payment.

Many of those in DACA are now parents themselves, supporting families and children who were born in the U.S., attended school and college here, with some becoming attorneys and doctors, Harrington said. These individuals are not just high schoolers, but a wide range of people contributing to their communities through their work. 

What is really needed to address DACA is for Congress to act, Harrington said. Only Congress could create a pathway toward lawfully permanent residency and citizenship for these individuals, not just another president who will continue the DACA program as an executive order — not at the whim of whoever occupies the Oval Office.

And in terms of the current July memo, she fully expects the new memo to be challenged in court, and for the program to return to its original form prior to 2017. She also hopes judges will continue to work as they have in the past, and for the courts to stop these actions from going forward. 

Further, the situation could change at any time.

“It could continue, in its current form, as it is right now… and then it will all really depend on what happens in November,” Harrington said.  She added that a heavy amount would depend on what kind of administration grows out of the November election — whether it be on that supports the program, or one that will fight it. 

“That’s all up in the air until November,” she said.

—Avery Martinez

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