Trump ended DACA in the most humane way possible
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Former President Barack ObamaBarack Hussein ObamaBiden celebrates start of Hanukkah The massive messaging miscues of all the president's men (and women) 'Car guy' Biden puts his spin on the presidency MORE established the Deferred Action for Childhood Arrivals (DACA) Program five years ago with an executive order that granted temporary lawful status and work authorization to certain undocumented immigrants who had been brought to the United States as children.

This was not a good idea. It only provided temporary relief and applicants had to admit alienage, concede unlawful presence, and provide their addresses to establish eligibility for the program, which has made it very easy to find them and rush them through removal proceedings.

Instead of giving false hope to the young immigrants who participated in the program and heightening their risk of deportation, Obama should have worked on getting legislation passed that would have given them real lawful status and put them on a path to citizenship. Such bills are referred to as DREAM Acts, an acronym for “Development, Relief, and Education for Alien Minors Act.”

That still is the only option that makes any sense.

One of President Donald TrumpDonald TrumpFormer defense secretary Esper sues Pentagon in memoir dispute Biden celebrates start of Hanukkah Fauci says lies, threats are 'noise' MORE’s campaign promises was that he would end DACA immediately if he were to be elected. He changed his mind after he was elected and allowed the program to continue.

But in June, Texas Attorney General Ken Paxton sent a letter to U.S. Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThose predicting Facebook's demise are blowing smoke If bitcoin is 'digital gold,' it should be taxed like gold The metaverse is coming — society should be wary MORE asking him to phase out the DACA program. Paxton warned Sessions that if he would not agree to do this by September 5, 2017, a challenge to DACA would be added to a lawsuit that 26 states had filed in a federal district court to prevent the implementation of the very similar Deferred Action for Parents of Americans and Lawful Permanent Residents, (DAPA) Program.

DAPA would grant temporary lawful status and work authorization to more than four million undocumented aliens who have a son or daughter who is a citizen or lawful permanent resident of the United States.

The district court has ordered a temporary injunction to halt the implementation of the DAPA program on the basis of a finding that the plaintiff states are likely to succeed when the case is decided on its merits.

Sessions reviewed the likelihood that the court would terminate the DACA program if it were added to the suit and concluded that the legal analysis which had led to a temporary injunction of DAPA would apply equally to DACA if it were to be included in the suit.

The likely outcome of letting DACA be added to that suit, therefore, would be an abrupt, court ordered termination of the program. Sessions opted instead to rescind DACA in a way that would allow the young immigrants in it to benefit from the program for as long as possible and give congress time to help them with the passage of a DREAM Act.

Sessions then sent a letter to Acting DHS Secretary Elaine C. Duke directing her to rescind the program with an orderly and efficient wind-down process. She rescinded it on September 5, 2017.  

Duke’s rescission memorandum includes a description of the wind-down process. These are the key points:

  • DHS will adjudicate properly filed initial requests for DACA status that have been accepted as of the date of the memorandum;
  • Will adjudicate properly filed DACA renewal requests from current beneficiaries that have been accepted as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018, which are accepted by October 5, 2017;
  • Will allow current grants of DACA status to continue for the remaining duration of their validity periods; and
  • Will not approve any new applications for advance parole (permission to return to the U.S. after a trip abroad) under the DACA program, but generally will honor the stated validity period for previously approved applications.

Later that day, Trump tweeted a message on the rescission:

DACA advocates need to put aside any anger they have over the rescission of DACA and work on getting a DREAM Act passed.

DREAM Acts have been pending in Congress since 2001, and we are yet to see one enacted.  This is what led Obama to establish the DACA program administratively.

A new approach is needed. One possibility would be to base eligibility on national interest instead of on a desire to help as many undocumented immigrants as possible, which is the approach taken by the recently introduced American Hope Act, H.R. 3591. It might more appropriately have been named, “The False Hope Act.”

The solution is to find a way to help immigrants who were brought here as children that would be acceptable to both parties.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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