Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On July 28, 2020, only six weeks after the Supreme Court of the United States blocked the U.S. Department of Homeland Security’s (DHS) attempt to end the Deferred Action for Childhood Arrivals (DACA) program, DHS issued a memorandum announcing plans to limit the scope of the DACA program, pending a comprehensive program review by the Trump administration.

The DHS memorandum sets forth the following immediate changes to the DACA program during the review period:

  • Initial DACA applications and requests for employment authorization will not be accepted. DHS will not accept new initial requests for DACA or associated applications for employment authorization documents (EADs). DHS will continue to adjudicate pending DACA applications and corresponding EAD applications. Neither previously issued grants of deferred action nor previously issued EADs will be revoked during their validity periods.
  • Travel authorization will not be granted absent exceptional circumstances. DHS will grant DACA recipients’ applications for advance parole (AP) travel authorization only in exceptional circumstances. DHS will reject both new and pending AP applications. Previously granted AP documents will not be revoked.
  • Renewal periods will be shortened. DHS will limit renewals of deferred action and employment authorization for current DACA recipients to one-year periods instead of two-year periods.

The memorandum maintains DHS’s discretionary authority to deny or terminate deferred action at any time deemed appropriate by immigration officials.

DHS has not indicated how long it will take to review of the DACA program.

History of the DACA Program

A history of the DACA program, which was implemented in 2012, and the surrounding litigation can be found in our recent article, “DACA Survives: SCOTUS Blocks Trump Administration Bid to End Deferred Action for Childhood Arrivals Program.”  In June 2020, the Supreme Court found that while the administration  possessed the legal authority to rescind DACA, its rationale for doing so had been “arbitrary and capricious” and, ultimately, a violation of the law. In July 2020, a federal judge ruled that the administration must resume accepting DACA applications following the Supreme Court’s decision.