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Volume XI, Number 340


December 03, 2021

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Future of Deferred Action Program Uncertain as Attorneys General Group Warns of Possible Court Case

The Texas Attorney General, along with counterparts in nine other states (the group that successfully challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program, DAPA), has sent a letter to Attorney General Jeff Sessions asking the Administration to rescind the Deferred Action for Childhood Arrivals program (DACA).

Created by President Barack Obama’s executive order, DAPA was enjoined by the courts as an unacceptable expansion of executive power. The case against DAPA began with the issuance of an injunction by a federal court in Texas. The Fifth Circuit Court of Appeals affirmed and the Supreme Court deadlocked on the decision, leaving the injunction in place. In June, DHS Secretary John Kelly rescinded DAPA, noting that he saw no way forward. Now, DACA itself may be in jeopardy.

The attorneys general group plans to bring the question to court if the Administration does not respond to their request by September 5, the day after the August Congressional recess. Kelly has stated that he does not believe DACA would survive a court challenge. And Sessions, a vocal opponent of DACA, has praised the 10 states’ efforts. He stated, “I like it that our states and localities are holding the federal government to account . . . .”

Meanwhile, Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) have re-introduced the DREAM Act, which would provide relief to immigrants who may lose their protected status in the proposed court challenge. Durbin first filed this legislation 16 years ago and has re-introduced the bill repeatedly over the years. In some years, it passed the House, in others, it passed the Senate, but it has never made its way out of Congress to the president’s desk. The Graham/Durbin bill reportedly would qualify 1.8 million immigrants for legal status.

A group of Republicans has introduced the Recognizing America’s Children Act, which provides five years of conditional legal status to Dreamers who are working, studying, or serving in the military. After five years, the beneficiary could apply to adjust status to permanent resident. After another 10 years, the individuals might apply to naturalize.

Senate Minority Leader Chuck Schumer (D-N.Y.) is working with immigration advocates to determine whether a political fight might save DACA. For example, could support of DACA be traded for border wall funding? Schumer has said that “the Democrats will do everything they can to protect DACA.” He also said:

“Dreamers seek to work, study, and contribute to their communities and represent the best of America . . . . The Senate Democrats will fight tooth and nail to preserve this program and hold the president to his promise to maintain it.”

President Donald Trump has said that the DACA question is a hard one and that it needs to be “handled with compassion and heart.” But, given his campaign promise to eliminate DACA, Dreamers still fear being caught up in the Administration’s enforcement policies.

Meanwhile, the Attorneys General of 20 states have sought to persuade the President to maintain DACA. We will continue to follow Congressional and court activity on DACA.

Jackson Lewis P.C. © 2021National Law Review, Volume VII, Number 208

About this Author

Gary A. Pappas, Jackson Lewis, immigration attorney, labor lawyer
Of Counsel

Gary A. Pappas is Of Counsel in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Pappas has practiced in the field of Immigration Law for over 42 years.

He has represented large and small employers in various industries. He has assisted his clients in all aspects of employment-related immigration issues including Temporary Professional Workers, Intra-company Transferees, and the Permanent Resident process. He has also given advice and counsel to Human Resource personnel and internal counsel on developing and establishing company...