DACA: The latest developments

As described in the prior client alert from early January 2018, the Deferred Action for Child Arrivals (DACA) program allowed individuals who arrived illegally in the U.S. before 2007, when they were under the age of 16, to apply for permission to live and work legally in the U.S. for renewable two-year periods. These individuals are sometimes referred to as “Dreamers” because the DACA executive order came about only after Congress failed to pass the Development Relief and Education for Alien Minors (DREAM) Act, which would have offered those individuals who came to the U.S. illegally as children, the opportunity to become permanent legal U.S. residents.

In September 2017, President Trump took steps to phase out the DACA program which was scheduled to end on March 5, 2018. Then the March 5 deadline was put on hold based on injunctions issued by the U.S. District Court for the Northern District of California on Jan. 9, 2018, and by the U.S. District Court for the Southern District of New York on Feb. 13, 2018.

The New York District Court commented that the Trump administration did not offer “legally adequate reasons” for ending the DACA program that spared many young immigrants from deportation. Any effort to reverse those decisions would normally be addressed by the respective federal appeals courts for California (the Ninth Circuit Court of Appeals) and New York (the Second Circuit Court of Appeals); however, the Trump administration made an unusual request to the Supreme Court to bypass the federal appeals courts and have the Supreme Court intervene and hear arguments regarding injunctions. On Feb. 25, 2018, the Supreme Court rejected the administration’s request.

The DACA program remains in place after March 5, 2018, by virtue of the injunctions. No deportations can take place, although the injunctions do not provide that the DACA program must accept new applicants. This sums up the current status of DACA.

In the days leading up to the recent government funding resolutions, congressional leaders attempted to reach an agreement with the administration on DACA but the initial indications from the President as to his approval of a compromise resolution were later retracted and no compromise was realized. Since that time there has been a great deal of discussion but no action towards a compromise and the President’s Twitter comments on April 2, 2018, that the DACA program was “dead” do not bode well for legislative action.

The three possible options introduced in Congress intended to deal with modifications to the DACA program, described in the prior Alert – the BRIDGE Act, the SUCEED Act and the Clean Dream Act – are on hold, for now.

As was the case previously, stay tuned for further developments.

Please contact an attorney from the Employment Law practice group at Chuhak & Tecson with any questions regarding DACA. 

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Daniel J. Fumagalli, Principal

This alert originally appeared in the April 2018 Employment Focus newsletter.