Trump Administration Reviewing How to Rescind DACA in Aftermath of SCOTUS Ruling
By Preston Huennekens | FAIR Take | July 2020
The Trump administration faced a profound setback in rescinding the Obama-era amnesty executive memorandum Deferred Action for Childhood Arrivals (DACA) when the Supreme Court ruled in DHS v. Regents of the University of California that the administration’s ending of DACA was “arbitrary and capricious” and did not properly follow the Administrative Procedure Act (APA). Supporters of DACA cheered the 5-4 decision, while opponents of the amnesty program noted that the Court ruled only on the procedural aspect of the wind down, rather than the constitutionality of the program itself. Indeed, in the majority’s opinion Chief Justice John Roberts wrote that “the dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”
On July 28, Acting Secretary of the Department of Homeland Security (DHS) Chad Wolf announced that the department would refuse all new requests for DACA protection as it studies the future of the program. Acting Secretary Wolf took this action in part to bolster any future possibility of rescinding DACA against accusations that the administration did not follow the APA.
The announcement notes that the Administration is taking three actions:
- “Reject all initial requests for DACA and associated applications for Employment Authorization Documents;
- Reject new and pending requests for advanced parole absent exceptional circumstances; and
- Limit the period of renewed deferred action granted pursuant to the DACA policy after the issuance of this memorandum to one year.”
In essence, this simply means that DHS will extend no new DACA protections to anyone who did not already have them. This has been the status quo under the Trump administration since the first attempt to end the program: DHS rejects new applications, but processes renewals of individuals with existing DACA protection. US Citizenship and Immigration Services estimated that there were 649,070 active DACA recipients as of December 31, 2019.
It is unclear whether or not the administration is seriously considering a second attempt to end the DACA program before the November election. However, this important action reviewing the program and continuing the moratorium on new applications sets the stage for a potential rescission late in 2020, or in 2021 if President Trump wins re-election.
The full DHS memo is available here: Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”