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‘Patently Illegal’: Trump Administration Announces Controversial New Plan to Wind Down DACA Program

WASHINGTON, DC - JULY 26: U.S. President Donald Trump walks off Marine One, on the South Lawn of the White House on July 26, 2020 in Washington, DC. President Trump golfed with former NFL quarterback great Brett Favre over the weekend at Trump National Golf Club.  White MAGA Make America Great Again Hat.

The Trump administration on Tuesday announced that it will renew its efforts to rescind the Deferred Action for Childhood Arrivals (DACA) policy by directing the Department of Homeland Security (DHS) to cease accepting any new applications and curtailing renewals for the program.

A memo from acting DHS Secretary Chad Wolf says the “immediate changes” are meant to facilitate his “thorough consideration” of how to address the policy in light of last month’s Supreme Court decision. In a 5-4 vote along the usual ideological lines, the justices reasoned that the administration’s previous attempt to end the program was “arbitrary and capricious” and in violation of the Administrative Procedure Act (APA).

Wolf has concluded that “the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission,” according to the memo. He added that the new policies are intended to “mitigate my enforcement policy concerns while I conduct a full and careful consideration of a full rescission.”

He then provided several reasons to support his ending the program. UNLV law professor Michael Kagan categorized the administration’s underlying reasoning as “thin” but noted that unlike the administration’s first attempt to rescind the program, Wolf did not rely solely on DACA recipients being in the country illegally.

“The Memo offers thin policy rationales, but unlike the initial AG Sessions-driven decision in Sept 2017, it does not rely solely on supposed illegality,” he wrote. “The policy rationales offered include a general opposition to categorical deferred action programs in immigration, coupled with a dubious (and oft-rebutted) claim that DACA puts children in danger by encouraging child migration.”

Kagan categorized the administration’s latest salvo over the program not as “open defiance” of the Supreme Court decision, but as “an effort to work around” the ruling. Others in the legal community had a far more vitriolic opinion of the move.

Attorney Cristian Farias of the Knight First Amendment Institute at Columbia University called the order “contempt of court” for not complying with the Supreme Court’s own order to return to the status quo of how DACA was administered prior to the administration’s first attempt to end the policy.

Wolf’s memo seemingly concedes that the administration did not abide by that order.

“DHS did not expand beyond the status quo of the past several years for a few weeks while it was determining next steps,” the memo stated.

This admission will likely provide fodder for the inevitable legal challenges to the memo’s directives.

“This is patently illegal,” the American Civil Liberties Union (ACLU) said. “The Trump administration must accept new DACA-applications AND extend legal protection for the full two years. Anything less is in defiance of the Supreme Court.”

Andrea Flores, deputy director of immigration policy for the ACLU, released a statement vowing to challenge the latest attempt to end the program.

“For the past three years, President Trump and Stephen Miller have pledged to end DACA, a critical program that protects hundreds of thousands of young Americans in waiting. After losing this issue in the Supreme Court, Trump took yet another step today toward his ultimate goal of destroying the lives of Dreamers,” she said. “Today is another cruel day for Dreamers, their families, and all Americans. But we promise, just like the Dreamers, who have fought for decades, we won’t stop fighting.”

Read the full memo below.

DHS Daca Order by Law&Crime on Scribd

[Photo by Tasos Katopodis/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.