On June 15, 2017, U.S. Department of Homeland Security (DHS) Secretary John F. Kelly signed a memorandum rescinding the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) Program, but leaving in place the Deferred Action for Childhood Arrivals (DACA) Program created under the Obama Administration. On June 14, 2017, the Trump Administration also issued a memorandum delaying the enforcement of certain provisions of the President’s Executive Order on travel, in light of federal litigation that enjoined the enforcement of those provisions.
DACA and DAPA: What are they and what is their current status?
- Deferred Action for Childhood Arrivals (DACA)
The DACA program (also referred to informally as the “DREAMers” program) was created through a June 15, 2012 DHS memorandum issued during the Obama Administration. Five years later, on June 15, 2017, DHS announced that the DACA program would remain in effect for now. DACA is a discretionary determination to defer the removal of an individual who is in the country without a lawful status. DACA does not provide lawful status or a pathway to permanent residence or citizenship, but individuals whose cases are deferred as part of this process will not be removed from the United States for a two-year period, subject to renewal, and may also apply for employment authorization. A leaked draft Presidential Executive Order had purported to end the DACA program. However, the draft Executive Order has not been signed yet and the DACA program is still being implemented.
In order to qualify for DACA, individuals must prove that (1) they were under the age of 31 as of June 15, 2012; (2) they came to the U.S. before reaching their 16th birthday; (3) they have continuously resided in the United States since June 15, 2007, up to the present time; (4) they were physically present in the United States on June 15, 2012, and at the time of making the request for DACA consideration; (5) they entered without inspection before June 15, 2012, or their lawful immigration status was expired as of June 15, 2012; (6) they are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; and (7) they have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Individuals who qualify for DACA may currently continue to apply for initial approval and extensions in two-year increments. However, the future of DACA is still uncertain as it does not, alone, lead to any long-term solution to unlawful immigration status. Individuals in DACA status should continue to follow the developments as the Trump Administration may still be considering the termination of DACA in the future, pursuant to the leaked draft Executive Order discussed above. The Trump Administration does not require approval from Congress to immediately terminate DACA, should it decide to do so.
- Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
DAPA was created by the Obama Administration through a November 20, 2014 DHS memorandum. DAPA would have allowed individuals without a lawful U.S. immigration status to be considered for deferred action, similar to that granted to DACA beneficiaries, if they could show certain criteria including that they were parents of a U.S. citizen or lawful permanent resident child as of a certain date. DAPA was never implemented due to a Texas-based lawsuit, which resulted in a court decision that blocked the program. The U.S. Supreme Court deadlocked in the appeal from that case and the 4-4 split ruling kept in place the court decision to block the DAPA program. The June 15, 2017 memorandum rescinds the DAPA program for the reason that there is “no credible path forward to litigate the currently enjoined policy.” The November 20, 2014 memorandum had also sought to extend the two-year DACA period to three years, but that portion of it was also enjoined in the Texas-based legislation and has been rescinded through the June 15, 2017 memorandum.
Individuals may not currently apply for DAPA and should beware of scams purporting to know of a loophole or way to apply under the program, which was never implemented and has now been rescinded.
The President’s Executive Orders on travel: Where do we stand?
The Trump Administration issued an initial Executive Order on travel from certain countries on January 27, 2017. That order was blocked by federal court decisions, and was subsequently revised and reissued on March 6, 2017. The revised order sought, among other things, to temporarily block entry into the U.S. of certain nationals from six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days and to suspend the refugee program.
The above key provisions of the reissued Executive Order never took effect as they were halted by a Hawaii Federal Court decision on March 15, 2017. On June 12, 2017, the Ninth Circuit Court of Appeals upheld the decision of the lower court. The revised order was also challenged in another jurisdiction leading to a decision by the Fourth Circuit Court of Appeals on May 25, 2017 to uphold a nationwide preliminary injunction blocking its key elements from being enforced.
On June 14, 2017, President Trump issued a memorandum stating that, in light of the federal litigation blocking the implementation of certain provisions of the Executive Order on travel, the effective date of the blocked provisions would be delayed until the federal court’s injunctions are lifted or stayed (assuming the injunctions are lifted or stayed in the future).
The above provisions of the Executive Orders on travel are therefore not currently being enforced. Regardless of the delayed implementation of certain provisions of the Executive Order on travel, foreign nationals must always ensure that they meet eligibility for travel to the U.S. and that they possess the appropriate required documentation to be admitted into the U.S. International travel for foreign nationals from any country is a complex issue that requires a fact-specific analysis. Foreign nationals considering travel to the U.S. may benefit from advice from experienced immigration counsel.