September 5, 2017
On September 5, 2017, the Trump Administration announced the termination of the Deferred Action for Childhood Arrivals program ("DACA"). Attorney General Jeff Sessions announced the Administration’s decision in remarks delivered on Tuesday morning.[1] Acting Secretary of Homeland Security Elaine Duke subsequently issued a memorandum formally rescinding the program,[2] after which the White House issued a separate statement explaining President Trump’s decision.[3]
Under DACA, certain individuals brought to the United States as children who met specific criteria could apply for a two-year, renewable period of deferred action from immigration enforcement. Those granted deferred action were considered by the Department of Homeland Security ("DHS") to be "lawfully present" in the United States, and eligible for work authorization. Since 2012, nearly 800,000 young people have been granted DACA status, with the majority of these individuals located in California, Texas, Illinois, New York, and Florida.[4]
This alert addresses the implications of the implementation of the rescission memorandum by DHS. Most notably for our clients, DHS will continue to accept renewal applications from individuals who have DACA status that will expire between now and March 5, 2018, so long as the renewal applications are filed and accepted by October 5, 2017.
On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program.[5] Individuals qualified for DACA if they: (1) came to the United States under the age of sixteen; (2) had five years of continuous residence in the United States; (3) met certain education or military service requirements; (4) had not been convicted of a felony or certain other crimes, and weren’t otherwise a threat to national security; and (5) were not above the age of 30.[6]
On November 20, 2014, DHS issued a new memorandum expanding the eligibility for DACA and also creating a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA").[7] However, shortly thereafter, a group of 26 states successfully challenged DAPA in federal court, obtaining a nationwide injunction against its implementation that was affirmed by the Fifth Circuit on the basis that the DAPA program was not authorized by the Immigration and Nationality Act and was therefore unlawful executive action.[8] The Fifth Circuit’s decision was subsequently affirmed by an equally divided Supreme Court.
On June 29, 2017, officials from ten of the states that had challenged the DAPA program sent a letter to Attorney General Sessions, asserting that the DACA program was unconstitutional for the same reasons that the court found the DAPA program to be unconstitutional. The states wrote that they would amend their DAPA lawsuit to include a challenge to DACA unless the federal government rescinded the DACA program by September 5, 2017.[9]
On July 21, 2017, attorneys general from twenty other states sent a letter to the President urging him to maintain DACA and defend the program in court.[10] On August 31, 2017, hundreds of America’s leading business executives sent a letter to President Trump urging him to preserve the DACA program.[11]
On September 4, 2017, Attorney General Sessions wrote to Acting Secretary of Homeland Security Duke, describing his assessment that "DACA was effectuated by the previous administration through executive action, without proper statutory authority;" that DACA "was an unconstitutional exercise of authority by the Executive Branch;" and that "it is likely that potentially imminent litigation would yield similar results [as the DAPA litigation] with respect to DACA."[12]
On September 5, 2017, Attorney General Sessions announced the Administration’s decision to end DACA, and Acting Secretary of Homeland Security Duke issued the memorandum formally rescinding the DACA program.
The DHS memorandum does not immediately terminate the lawful presence or work authorizations of current DACA recipients, nor does it immediately terminate the DACA program itself. Rather, DHS has chosen to wind down the program over the coming years. The details of this phase-out are as follows:
Although the extended nature of the rescission will delay the effect of terminating DACA somewhat, the end of the program is nonetheless expected to be disruptive to American businesses. Researchers have estimated that terminating DACA would cause 30,000 people per month to lose their jobs, and will impose costs of approximately $3.4 billion on employers nationwide.[15]
In a statement issued on September 5, 2017, President Trump called on Congress to pass comprehensive immigration reform, including a program similar to DACA. President Trump wrote, "Congress now has the opportunity to advance responsible immigration reform that puts American jobs and American security first. . . . I look forward to working with Republicans and Democrats in Congress to finally address all of these issues in a manner that puts the hardworking citizens of our country first. . . . It is now time for Congress to act!"[16]
At least one court challenge has already been initiated in reaction to today’s rescission memorandum. The National Immigration Law Center, joined by the Jerome N. Frank Legal Services Organization at Yale Law School and Make The Road – New York, are requesting leave to amend a complaint in the Eastern District of New York, to allege that the rescission of DACA violates the Administrative Procedure Act and the constitutional rights of DACA beneficiaries.[17] And at least three Democratic state attorneys general have threatened to challenge the Administration’s decision in court.[18]
Additionally, following the Administration’s announcement, the states that successfully challenged the DAPA program voluntarily dismissed their lawsuit.[19]
Employers may consider actions to address the developments described above, and minimize the effect on employees. In particular, employers may want to consider:
Finally, employers may consider the impact that these developments are likely to cause for DACA beneficiaries and their families. Employers may consider providing counseling or other support for employees affected by this change in policy.
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Gibson Dunn will continue to closely monitor these rapidly developing issues.
[1] See Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca.
[2] See Memorandum from Acting Secretary Elaine C. Duke, Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children" (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca (hereinafter "Rescission Memorandum").
[3] See Statement from President Donald J. Trump (Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/statement-president-donald-j-trump.
[4] See United States Citizenship and Immigration Services, Number of Form 1-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (June 8, 2017).
[5] Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
[7] Memorandum from Secretary Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
[8] Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015); see also Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016).
[9] Letter from Texas Attorney General Ken Paxton, et al., to U.S. Attorney General Jeff Sessions (June 29, 2017), https://www.texasattorneygeneral.gov/files/epress/DACA_letter_6_29_2017.pdf.
[10] Letter from California Attorney General Xavier Becerra, et al., to President Donald J. Trump (July 21, 2017), https://oag.ca.gov/system/files/attachments/press_releases/7-21-17%20%20Letter%20from%20State%20AGs%20to%20President%20Trump%20re%20DACA.final_.pdf.
[11] Letter to Donald J. Trump, Paul Ryan, Nancy Pelosi, Mitch McConnell, and Charles Schumer (Aug. 31, 2017), https://dreamers.fwd.us/business-leaders.
[12] See Mahita Gajanan, Read Jeff Sessions’ Letter Calling for the End of DACA, TIME (Sept. 5, 2017), http://time.com/4927250/jeff-sessions-daca-rescind-letter; see also Rescission Memorandum, supra note 2.
[13] Department of Homeland Security, Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca.
[14] See Rescission Memorandum, supra note 2.
[15] See Immigration Legal Resource Center, Money on the Table: The Economic Cost of Ending DACA, at 4 (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/2016-12-13_ilrc_report_-_money_on_the_table_economic_costs_of_ending_daca.pdf.
[16] Statement from President Donald J. Trump, supra note 3.
[17] See Batalla Vidal, et al. v. Baran, et al., No. 1:16-cv-04756-NGG-JO, Dkt. #46 (E.D.N.Y. Sept. 5, 2017).
[18] Reid Wilson, Dems Threaten to Sue Trump Over DACA, The Hill (Sept. 5, 2017), http://thehill.com/homenews/state-watch/349302-dems-threaten-to-sue-trump-over-daca.
[19] Texas v. United States, No. 1:14-cv-00254, Dkt. #469 (S.D. Tex. Sept. 5, 2017).
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or the following:
Theodore J. Boutrous, Jr. – Los Angeles (+1 213-229-7000, [email protected])
Ethan Dettmer – San Francisco (+1 415-393-8292, [email protected])
Stuart F. Delery – Washington, D.C. (+1 202-887-3650, [email protected])
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