Trump administration memos exempt DACA recipients from deportation enforcement

The Department of Homeland Security has officially released two memorandums that address the implementation of the Trump administration’s immigration enforcement and border security initiatives (there memos were initially circulated  in the media prior to their official release on February 21, 2017.)  The two memos are as follows:

  1. Implement the President’s Border Security and Immigration Enforcement Improvements Policies; and

Of these two memorandums, it appears to be the second of the two that is garnering the most attention.  The reason for this is that the memo (1) rescinds all prior conflicting memos, guidances and directives regarding immigration laws and priorities for removal [other than for two notable exceptions], (2) sets new priorities for removal, and (3) calls for the hiring of 10,000 new ICE officers for the purpose of enforcing immigration laws.

Regarding deportation, the memo expands upon the classes of people subject to deportation as had been established by the Obama administration in its memo entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” Whereas the Obama administration’s priorities primarily focused on removal of people convicted of felonies, three or more misdemeanor offenses, or “significant misdemeanor” offenses, the Trump administration’s priorities have expanded the class of people subject to deportation to include people who have been convicted of any criminal offense, have been charged with any criminal offense, or have committed acts that constitute a chargeable criminal offense.  For the specifics of these priorities for removal please refer to the particular memorandums.

Yet despite the directives regarding enhanced enforcement initiatives, the “Enforcement of the Immigration Laws to Serve the National Interest” memorandum contains an official pronouncement about the Trump administration’s position about the DACA program that was initiated under the Obama administration.

Although not expansive in its treatment of the issue, at the beginning of the memo while rescinding all prior Obama administration enforcement directives both DACA and DAPA were specifically exempted from the rescission:

With the exception of the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and the November 20, 2014 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,”[1] all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby immediately rescinded …

It is important to note that the DACA exemption was unqualified. But the DAPA exemption came with the qualification that the November 20, 2014 DAPA memo would be addressed in a further memo, perhaps necessitated by the fact that it needs to be reworked  as its implementation is currently blocked by a federal court’s national injunction.

The exemption for DACA contained in the memo confirms what has long been hinted, that there would not be a rescission of the DACA program. This should bring some relief to DACA recipients about their fears that under the Trump administration the program would be cancelled and they would be subject to deportation.

Yet, it needs to be emphasized that DACA is a deferred action program that does not address the long-term “lawfully present” status of these individuals.  In order for this to be done it should be through a legislative fix for which there appears to be bipartisan support. It remains to be seen whether this can be accomplished, but it may be one of the few items relating to immigration reform where democrats and republicans can agree.



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