Almost 800,00 children came to the United States as the children of illegal immigrants.  In many cases, these children have no memory of their native country, and many do not speak the language of their country of origin.   Unless there is a change in the law, these children live a life of uncertainty, waiting to be picked up and deported to a country they do not know.

In 2012, President Obama adopted the Deferred Action for Childhood Arrivals (“DACA”) program.  The program was adopted via a Memorandum issued by Homeland Security Secretary Janet Napolitano.  In the normal course, an immigrant needs to apply for legal status with the U.S. Immigration and Customs Enforcement (ICE) The immigrant may be deported, may receive an elevated status, or may simply be advised that their status as an undocumented worker will be deferred until further action is taken.  The Napolitano memo provided guidance to customs officials, stating that if the applicant met certain guidelines, any deportation action against them should be deferred.   The deference would have a duration of two years, at which time the DACA immigrant is eligible for a renewable two-year period of deferred action (and a work permit) if they:

• Arrived in the United States before age 16,

• Lived continuously in the United States since June 15, 2007,

• Were under the age of 31 in 2012,

• Have no conviction of a felony or serious misdemeanor,

• Have completed high school or a GED, or have served in the armed forces, 

• Pass background, fingerprint and other checks that look at identifying biological features, and

• Pay a $495 application fee.

The DACA exemption, if approved, is good for two years, at which point the person must re-apply.  DACA recipients may receive a valid driver's licenses, enroll in college, and legally secure jobs. They must also pay taxes.

The program doesn’t give DACA children a path to become US citizens or even legal permanent residents -- something immigrant rights advocates have criticized, saying it left people in limbo.

DACA has reduced the number of immigrants living in poverty and improved the mental health outcomes of the DACA families.  It has not been shown to have any adverse impact on the employment of U.S.-born workers.  Indeed, economists express concern that ending DACA would adversely affect the U.S. economy.  The CATO Institute estimates that the deportation of DACA recipients would, over the next decade, result in a $283 billion loss in economic revenue, a $60 billion in tax revenue, and a $24 billion loss in Medicare and social security revenue.  

Among the accepted applicants, Mexico is by far the biggest country of origin, followed by El Salvador, Guatemala and Honduras.

In 2014, President Obama announced an expansion of DACA to open eligibility for others.  In December of 2014, 25 states with Republican governors or attorneys general sued to enjoin the expansion of the program. U.S. District Court Judge Hanen in Texas enjoined the expansion.  Judge Hanen did not, however, suspend the original DACA program. 

In September of 2017 President Trump suspended the entire DACA program, telling DACA recipients that their exemptions will not be renewed.  This suspension took the form of a memorandum issued by his Homeland Security Secretary rescinding the earlier Napolitano memorandum that created the program.  In that month, two lawsuits challenging the President’s authority to unilaterally rescind the DACA program were filed.  In federal court in New York, 16 Attorneys General filed a lawsuit to enjoin the Trump order.  In federal court in the Northern District of California, four Attorneys General, including Attorney General Swanson, filed a similar lawsuit.  On January 9, 2018, the federal district court in California  temporarily blocked the rescission of the DACA program, finding that the Department of  Homeland Security provided no basis to conclude that the Napolitano memo was unlawful, and further ordering the government to renew DACA applications.  On January 13, 2018, the federal government stated that it would immediately resume the approval of DACA renewal applications.  On February 26, 2018, the U.S. Supreme Court declined to hear the Trump administration's request for it to review the lower court order that the administration must continue to accept DACA applications.  On April 24, 2018 the D.C. District Court Judge ruled that the Homeland Security Memorandum issued by Trump did not justify its finding that the Napolitano Order was unlawful.   Thereafter, the U.S. Supreme Court referred the matter back to the Ninth Circuit Court of Appeals. The effect of this ruling was to delay any change in the DACA program until at least October 2018.

In the meantime, a group of Republican Attorneys General filed a lawsuit in Texas, requesting the court to issue an injunction to end the original DACA program.  Swanson filed a brief opposing this request. On August 31, 2018, the Texas Judge Hanen issued an order supporting Swanson’s request, saying it was too late to “unscramble the eggs” and that the issue was pending, and would be resolved,  before the 9th Circuit (California) and the Second Circuit (New York)

As of the date this note is written, appeals were pending in the Courts of Appeals for the Second, Fourth, and Ninth Circuits as it relates to the above lawsuits. The Second and Fourth Circuit cases had begun to receive briefs, and the courts had not yet scheduled arguments in those cases. After each court hears argument, it will take an indeterminate amount of time to consider the arguments and issue a ruling.

In the meantime, the Trump Administration was attempting to get the matter heard by the U.S. Supreme Court before the end of this term.  

In the meantime, the DREAM Act is pending in Congress, which would provide a pathway to permanent residency for DACA and other immigrants.  The bill has been deliberated by Congress since 2007 but has failed to be enacted. 


DACA Complaint