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Immigration activists outside the Supreme Court
Photo by Scott Henrichsen. Courtesy of the University of California.
The Trump administration says it will not process new applications for the Deferred Action for Childhood Arrivals program and that it will limit the renewal term for current DACA recipients to one year instead of the usual two. Critics say the policy change is in blatant defiance of a court order directing the restoration of the program.
The DACA program, which was established in 2012 under former president Obama, provides protection against deportation and work authorization to certain undocumented immigrants, known as Dreamers, who were brought to the U.S. as children. The Trump administration ordered the end of DACA in 2017, but colleges and other entities sued to stop the administration from ending the program.
The lawsuits ended up at the Supreme Court, which ruled last month that the administration acted arbitrarily and capriciously in ending the program and ruled that the rescission be vacated. Legal experts argue that the ruling meant the program had to be restored to its full form, meaning that in addition to processing DACA renewals, the administration had to accept new applicants for the program.
A federal judge in Maryland earlier this month ordered the restoration of DACA “to its pre-September 5, 2017 status,” from before the Trump administration announced the rescission of the program, in light of the Supreme Court ruling.
But on Tuesday Chad F. Wolf, the acting secretary of homeland security, issued a memo saying he would make “certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision.”
These steps included directing Department of Homeland Security staff “to take all appropriate actions to reject all pending and future initial requests for DACA, to reject all pending and future applications for advance parole absent exceptional circumstances” -- advance parole is essentially advance permission for DACA recipients to leave the country and re-enter -- “and to shorten DACA renewals.”
Wolf wrote that shortening the term of DACA renewals will have the potential benefit of significantly lessening the lasting effects of the DACA policy “if I ultimately decide to rescind it.”
Reaction was swift. “This is patently illegal,” the American Civil Liberties Union said on Twitter. “The Trump administration must accept new DACA applications AND extend legal protection for the full two years. Anything less is in defiance of the Supreme Court.”
The American Council on Education said in a tweet, "We are appalled by the @DHSgov decision to reject acceptance or processing of new DACA applications and to shorten renewal periods of current DACA recipients. This apparent defiance of U.S. Supreme Court is another reason why Congress must act now to permanently #protectDreamers."
The Supreme Court left the door open for the Trump administration to end DACA but suggested that it would need to provide a reasoned analysis for doing so and to demonstrate that it had considered the “reliance interests” of DACA beneficiaries and others who have come to depend on the program.
In justifying the steps he was taking, Wolf wrote in the memo that new applicants for the program had fewer, if any, reliance interests on the continuation of DACA.
He also argued that current DACA beneficiaries' reliance on the program would not be “significantly affected by shortening the renewal periods from two years to one year.” He did acknowledge, however, that shortening the renewal period will have the effect of increasing the cost for DACA recipients.
The fee for renewing DACA status is $495, and it stands to effectively double as it will only cover one year of renewal instead of two. Wolf wrote in the memo that "DHS personnel should consider whether it is possible to reduce renewal fees during this interim period of reconsideration. In my current view, however, even if renewal fees cannot be reduced, shortening the renewal period is still warranted by my strong desire to limit the scope of the policy during this interim period despite any additional fees incurred by DACA beneficiaries as a result."
In a briefing call with reporters Tuesday, a senior administration official described Wolf's memo as "an intervening action" by the administration that changes its obligations in relation to the federal judge's order directing restoration of DACA to the status it had before September 2017.
"Under the judge’s order, absent any intervening action from this administration, we would be back to a pre-2017 context," the official said. "This memo is an intervening action that lays out how the administration will proceed both with the substantive review of the underlying conditions that led to the promulgation of those two earlier memos [establishing DACA] and what steps we’re going to take in ensuring the program is maintained as it’s currently constituted."
Michael A. Olivas, an emeritus professor of law at the University of Houston, said it is "incontestable" the Trump administration is acting in defiance of the Supreme Court.
“The Supreme Court said you can’t shut it down without going through the proper channels, which they have not yet done,” Olivas said. “He [Wolf] says he’s going to look it over for the next year -- that’s not enough. That’s how they got in trouble in the first place, by single-handedly trying to make changes that require notice and comment at a minimum.”
"They know full well this is either going to bring additional litigation or embarrassment to them," Olivas added.
The senior Trump administration official said in the briefing call that court challenges were indeed expected.
College leaders and higher education groups had strongly advocated for keeping the DACA program in place, and several colleges, including the University of California and Princeton University, were among the institutions that filed lawsuits against the administration seeking to block its efforts to end DACA.
Jose Magaña-Salgado, the director of policy and communications for the Presidents' Alliance on Higher Education and Immigration, an association of college presidents that advocates for the protection of DACA, said the policy change "represents a stealth rescission of DACA through administrative and bureaucratic policy changes."
"The Presidents’ Alliance will, as it did in the previous litigation, rally institutions of higher education to support forthcoming legal challenges," said Magaña-Salgado, a DACA recipient himself. "Immigrant youth courageously won this battle in the court of public opinion and the Supreme Court, and we will do so again."
