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Daca Remains in Effect (For Now), but Dapa Is Dead

DACA REMAINS IN EFFECT

On June 15, 2012, former Department of Homeland Security Secretary Janet Napolitano issued a memorandum that created the Deferred Action for Childhood Arrivals (DACA). Under DACA, undocumented children who met certain criteria would not be placed in removal proceedings or removed from the United States for two years, subject to renewal. Individuals in removal proceedings, and those with final orders or a voluntary departure order, and those who have never been in removal proceedings can affirmatively request action from USCIS as long as they are not in immigration detention.

The requirements for DACA are as follows:

• You were under 31 years old as of June 15, 2012;
• You first came to the United States before your 16th birthday;
• You have lived continuously in the United States from June 15, 2007 until the present;
• You were physically present in the United States on June 15, 2012 and at the time you apply;
• You came to the United States without documents before June 15, 2012, or your lawful status expired as of June 15,
2012;
• You are currently studying, or you graduated from high school or earned a certificate of completion of high school or
GED, or have been honorably discharged from the Coast Guard or military (technical and trade school completion also
qualifies); and
• You have NOT been convicted of a felony, certain significant misdemeanors (including a single DUI), or three or more
misdemeanors of any kind.

Apparently, more than 750,000 undocumented immigrants have received work permits and deportation relief through DACA. The group includes immigrants who came to the United States before the age of 16.

Interestingly, while on the campaign trail, President Trump had indicated he would immediately terminated DACA. After being elected, he was no longer so strong on his position regarding termination of DACA.
Last week, the Trump administration decided to leave the DACA program untouched, but not the DAPA.

DEATH OF DAPA

By way of background on November 14, 2014, the Obama administration provided a path for undocumented individuals in the US with a US or permanent resident child, to be considered for deferred action, i.e. Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) if the following criteria were met:

(1) as of November 20, 2014, be the parent of a U.S. citizen or lawful permanent resident;
(2) have continuously resided here since before January 1, 2010;
(3) have been physically present here on November 20, 2014, and when applying for relief;
(4) have no lawful immigration status on that date;
(5) not fall within the Secretary’s enforcement priorities; and
(6) “present no other factors that, in the exercise of discretion, make [ ] the grant of deferred action inappropriate.”

DAPA provided expanded work authorization for recipients for three years.

DAPA was never implemented, because after the DAPA memorandum was issued, twenty-six states challenged the policies established in the DAPA memorandum in the U.S. District Court for the Southern District of Texas. The district court enjoined implementation of the DAPA memorandum, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and the Supreme Court allowed the district court’s injunction to remain in place.

On June 15, 2017, the Department of Homeland Security Secretary John F. Kelly, after consulting with the Attorney General, signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as DAPA, on the grounds there is no credible path forward to litigate the currently enjoined policy.

Stay tuned for further developments on how the rights of the undocumented will be affected, going forward.

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