Senate vote signals end of DACA

15 Feb 18

UNITED STATES

After four days of an open immigration debate in Congress, the Senate on Thursday voted down four immigration amendments, three of which would have provided a legislative fix to the Deferred Action for Childhood Arrivals program that protects approximately 800,000 undocumented immigrants who were brought to the U.S. as children from deportation.

The Trump administration announced the end of the Obama-era program on Sept. 5 with a six-month delayed termination date of March 5 to give Congress time to find a legislative solution.

Key points:

  • The Senate vote signals the end of DACA and any chance of legislation that would make the program permanent. The Trump administration has said that it does not plan on extending the March 5 termination date.
  • In the past month, two federal district courts have blocked the administration’s repeal of DACA as violating the Administrative Procedures Act and ordered that the Department of Homeland Security continue to process renewal requests as it did before Sept. 5. The U.S. Supreme Court has agreed to put the case on an expedited track and will decide as early as Friday whether it will hear the case on direct appeal from the district court decision, as was requested by the administration. If the Supreme Court denies the request to hear the case on direct appeal, the district court decisions will probably be reviewed by the Courts of Appeal.

Background: The Senate voted on four immigration measures, none of which won the necessary 60 votes. The most promising bill, a bipartisan “centrist” measure that would have provided a legal pathway for 1.8 undocumented immigrants and $25 billion in border security, failed by a 54-45 vote after President Donald Trump threatened to veto it because it did not slash family-based immigration and eliminate Diversity Visas. A bill that would have mirrored the president’s demands was defeated 39-60. The two other bills were also defeated—one would have granted legal status to DACA recipients without any funding for a border wall (52-47) and the other would have withheld funding from sanctuary cities but proposed no DACA fix (54-45).

BAL Analysis: Despite the nationwide injunction and the potential for the Supreme Court to hear the case and possibly keep the injunction in place, the defeat of the four legislative bills effectively ends the possibility of a permanent fix for DACA-eligible recipients. Even if the courts allow the injunction to remain in place, the administration can still try to end DACA through rulemaking, requiring administrative notice and comment. BAL has recommended that employers plan for the end of DACA and has produced an FAQ to help companies understand their obligations and restrictions regarding DACA employees.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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