The fate of the Deferred Action for Childhood Arrivals (DACA) program is in flux as the Trump administration continues to send mixed signals about its plans.  Established by the Obama administration, DACA approved certain young adults (persons under 31) for “deferred action” from immigration enforcement for two years.  DACA granted deferred action to those young adults who entered the United States illegally as children (i.e., when they were under 16) and passed rigorous background checks, designed to determine whether an individual posed any risk to public safety.  DACA recipients are “authorized by DHS” to live in the United States during the deferred action period, and “considered by DHS to be lawfully present” in the United States while “deferred action is in effect.”  The United States also granted some DACA recipients authorization to work in the United States during the deferred action period. 

The Obama administration attempted to establish, in addition to DACA, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.  Under DAPA, certain individuals who entered the United States illegally, and have children who are United States citizens or lawful permanent residents of the United States, would also have been granted “deferred action” from immigration enforcement.  Like DACA recipients, DAPA recipients would have been authorized to live in the United States and considered to be lawfully present in the United States while deferred action was in effect. 

That’s what would have occurred with DAPA.  But soon after DAPA was announced, Texas sued the United States to prohibit DAPA’s enforcement.  Texas won in the lower federal courts, and obtained an injunction in the district court that prohibited enforcement of DAPA nationwide.  The Fifth Circuit affirmed the district court’s injunction.  And at the end of the last Supreme Court term, the Supreme Court affirmed by an equally divided vote.  Thus, the Fifth Circuit’s injunction against DAPA stands and the program is not in effect.

The Fifth Circuit’s injunction also addressed the expanded DACA program that was announced in conjunction with DAPA.  In the memo establishing DAPA, the Obama administration sought to expand DACA by granting deferred action for a longer period (3 years instead of 2) and to more individuals (not just to young adults, but also to anyone who entered the United States as a child).  The district court and Fifth Circuit also enjoined the DACA expansion, and that part of the injunction also remains in place.

But the injunction did not affect the initial DACA program.  That is, the decision did not affect current DACA recipients, or DACA recipients seeking the renewal of their DACA status under the terms established by the initial DACA program.  Nor did the injunction affect individuals seeking for the first time a 2-year deferral and accompanying DACA benefits under the terms established by the initial DACA program—young adults who entered the United States as children. Over 800,000 young people have been approved for deferred action. 

The Trump administration has yet to indicate what it is going to do with the DACA program and DACA recipients. There are several possibilities.  Will it grant DACA recipients deferred action after the current two-year period of deferred action ends, or will it let the program lapse?  Will the administration terminate the program entirely, or will it honor DACA recipients’ lawful status during the deferred action period?  

At this point, it is tragically not clear.  On the one hand, the administration’s recent memoranda on immigration enforcement explicitly do not rescind the Obama administration’s memoranda establishing the DACA program.  President Trump has also stated that DACA is “one of the most difficult subjects” to him, because it involves “incredible kids.”  And he has promised to “show great heart” to DACA recipients.

On the other hand, the administration’s talking points, Executive Orders, and DHS memoranda underscore its belief that all unauthorized immigration is a national problem.  The President and his administration have not affirmatively stated that they intend to stand by the DACA program and its guarantee to DACA recipients.  There are also reports that members of the Trump administration are strongly pushing the President to rescind DACA and adopt a uniformly harsh policy on immigration.    Perhaps most troubling, there have been at least five reports thus far of DACA recipients (or persons with DACA renewals pending) being arrested and detained by immigration officials.  In some of these cases, ICE has initiated removal proceedings to deport the DACA recipients, occasionally without even a hearing.  It is not clear whether and to what extent the administration is aware of these actions or has authorized them.  In any case, the administration has certainly not taken any steps to stop them.

The administration has thus left DACA in a considerable state of uncertainty, and has left DACA recipients vulnerable to line immigration officials, at least some of whom think that the administration’s anti-immigrant executive orders have given them “unfettered discretion” and have made their jobs “fun.”  Indeed, a few weeks ago the ICE twitter account tweeted some disturbing claims about DACA, including that DACA “is not a protected legal status” and that DACA recipients are only “typically a lower level of enforcement priority.” 

The reports are enough to make one wonder whether the administration is content to do nothing on DACA and to let ICE gut the program without the President having to take responsibility for doing it himself.

Some of the DACA recipients who have been detained are challenging their detentions in federal habeas proceedings.  One such DACA recipient is Daniela Vargas, whose DACA renewal was pending when ICE detained her following a press conference, at which she spoke about her fears of deportation. ICE initiated “expedited removal proceedings” against Vargas, which quickly resulted in a final order of removal.  Vargas subsequently filed a habeas petition challenging her detention and ICE’s authority to remove her.  The federal district court held that she could challenge the removal order against her only through a petition of review to the court of appeals, rather than a petition for habeas corpus in the district court.  But it also held that she could challenge her detention pending removal via a habeas petition.  After the federal court determined it had jurisdiction to hear her detention-related challenge, ICE released Vargas.  

Two weeks ago, a magistrate judge in Washington similarly concluded the federal courts had jurisdiction to hear Daniel Ramirez Medina’s habeas petition.  Ramirez, a DACA recipient, had been detained since February and the government elected to begin proceedings to remove him from the United States.  The administration had sought to force Ramirez to litigate his claims in immigration court, rather than in federal court.  The magistrate judge also denied Ramirez’s request to be released pending the disposition of his habeas petition.  But this week, an immigration judge allowed Ramirez to be released on a $15,000 bond.  He was released Wednesday, and will continue to litigate his claims in federal court.

This blog will cover the legal issues involved these cases in other posts.

Disclosure:  I am among the counsel to Daniel Ramirez-Medina.

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