The Birth and Death of Deferred Action (and what the Future Holds)

On June 15, 2017, the Department of Homeland Security (DHS) released a memo rescinding a widely known but not yet operational program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This program was announced by former President Obama in 2014 and would have enabled undocumented parents of Americans who have lived in the United States for a substantial period of time and can show they are not “enforcement priorities” to qualify for a form of prosecutorial discretion known as “deferred action” that would have temporarily protected them from deportation. It was estimated that more than 3.5 million parents would have qualified for the DAPA program

The DAPA program was stalled by a lawsuit filed by the state of Texas and 25 other states alleging that the program was unlawful. The lawsuit was political by nature and lacked an understanding for deferred action’s foundation and history. Indeed, more than 130 law professors and scholars of immigration described the legal foundation and history for a program like DAPA. The case went all the way to the U.S. Supreme Court and “ended” with a 4–4 ruling by an equally divided Court. Said Walter Dellinger, former Acting Solicitor General, “Seldom have the hopes of so many been crushed by so few words.”

The June 15 memo also indicated that a 2012 program known as Deferred Action for Childhood Arrivals (DACA) would remain in effect for now, and in a related FAQ indicated that DACA recipients will continue to be eligible as outlined in the June 15, 2012 memorandum. Qualifying noncitizens who entered the United States before the age of sixteen and who are in school or have graduated can receive deferred action and authorization to work if they can show economic necessity. The DACA program has served as a gateway for nearly 800,000 immigrant youth, the vast majority of whom are working or going to school in the United States. The contributions of DACA recipients to the U.S. economic and educational space have been extraordinary.

Deferred action is a tool that has existed in the immigration system for decades. My research of individual cases shows that thousands of people have received deferred action for largely for humanitarian reasons. Deferred action recipients, including but not limited to parents, breadwinners, victims of domestic violence and youth have been processed for received deferred action. Individual requests for deferred action can be made to DHS but there currently lacks a form, fee or specific structure about how to make a request beyond an internal operations memorandum.

The future of discretion in immigration is uncertain. As I have lamented in an earlier commentary: “With or without these enforcement orders or statements by DHS, prosecutorial discretion is in many ways inevitable as the government simply lacks the resources to carry out enforcement against every person who may be removable from the United States. However, how prosecutorial discretion is exercised matters. One concern is that instead of using priorities to guide enforcement, DHS will arbitrarily enforce the law against individuals and families who happen to be in the wrong place at the wrong time or other low-hanging fruit. Haphazard enforcement can lead to unintended or unlawful consequences, such as the separation of families and abuses of discretion.”

Since I wrote this comment in April, I have watched a tragedy unfold with the detention and deportation of individuals who clearly warrant a favorable exercise of prosecutorial discretion: fathers, long term residents and pillars in the community. What is at stake is an inhumane policy of immigration that separates families and a breakdown of discretion and the rule of law. It is crucial for the Administration to rethink its enforcement priorities and ensure that prosecutorial discretion is exercised fairly.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law: University Park. Her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases is now out in paperback.