On July 28, 2020, the U.S. Department of Homeland Security (“DHS”) announced that, in response to the U.S. Supreme Court’s decision on DACA, DHS is considering to fully rescind the DACA program. On June 18, 2020, the Supreme Court ruled that the decision to terminate DACA without sufficient justification was arbitrary and capricious, and that the new DACA applications should be given consideration. DHS’ memorandum specifically indicated that it will make the following changes to DACA immediately, while reconsidering to end the program:
- Reject all initial
requests for DACA and associated applications for Employment Authorization
- Reject new and pending
requests for advanced parole absent exceptional circumstances; and
- Limit the period of
renewed deferred action granted pursuant to the DACA policy after the issuance
of this memorandum to one year.
Acting Secretary Chad F. Wolf listed the following 4 areas of concern as “important policy reasons” to end DACA in its entirety:
- Concern about whether,
as a matter of policy, continuation of a broad, class-based deferred-action
policy like DACA should be resolved by Congress;
- Concern about whether
any discretion to not enforce the law or afford deferred action should be
exercised rarely and only on a truly individualized, case-by-case basis;
- Concern that the
existence of a program like DACA may send mixed messages about DHS’s intention
to consistently enforce immigration laws as Congress has written them; and,
- Concern that the existence
of a program like DACA may encourage individuals to take a perilous journey to
this country, needlessly endangering children.
In sum, while existing DACA recipients can continue to submit renewal applications and renewal of their work authorization, renewals will now be extended in increments of only one year, not two years. We anticipate that the DACA renewal applications, which will be reviewed and renewed on a case by case basis, will likely be subject to higher scrutiny. Unfortunately, for those who submit new DACA applications and DACA recipients who submit their advance parole applications will now see rejection and filing fees returned, unless they are in exceptional circumstances. Here, DHS has not yet specified or provided any guidance on what is considered to be “exceptional circumstances.” Based on our firm’s past experiences, we anticipate that serious illness or death of a member of the alien’s immediate family member may be considered as one of the exceptional circumstances. While DHS is reconsidering to completely end the DACA program, we also anticipate that the new DACA policy will likely be challenged in federal court.
Contact our office for more information about DACA or to schedule a consult with a licensed immigration attorney.