At a meeting with members of the Congressional Hispanic Caucus DHS Sec. John Kelly reportedly said he can’t promise that the Administration will defend the Deferred Action for Childhood Arrivals (DACA) program if challenged in court. 10 states are threatening to include DACA in a pending lawsuit if the Administration does not begin to phase out the program by September 5th.
DACA is a 2012 Obama Administration program that provides work permits and a temporary stay of deportation to certain illegal aliens brought to the U.S. as minors. In 2014 Obama also established a Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and extended version of DACA but 26 states sued to overturn both. Texas District Judge Andrew Hanen enjoined their implementation and the Supreme Court upheld his ruling on a 4-4 vote.
Judge Hanen is scheduled to hear the merits of the DAPA/extended DACA case in the fall. Sec. Kelly rescinded DAPA and extended DACA earlier this year, but the 10 states could extend the case to include the original DACA program if Hanen agrees. This forces the Administration into the position of having to abandon DACA or defend it.
CHC members attending the meeting told reporters Kelly said DACA is continuing for now but legal experts he's talked to inside and outside the Administration have convinced him that the program is unlikely to sustain a court challenge. Kelly did not confirm whether Attorney General Sessions will defend it in court.
"He did not indicate that they would (defend it). He didn't say that they wouldn't, but he didn't say that they would," Sen. Bob Menendez, D-N.J. told reporters. "So between that and what he says is the legal analysis he's heard, it's not a pretty picture." Rep. Luis Gutierrez, D-Ill., suggested "Jeff Sessions is going to say, 'Deport them.' If you're going to count on Jeff Sessions to save DACA, then DACA is ended."
Kelly reportedly suggested seeking a legislative fix for DACA. CHC pressed Kelly to support such legislation and asked him defend the program within the Administration. Kelly was noncommittal on both accounts.
Kelly did not speak to reporters after the meeting, but DHS spokesman David Lapan confirmed DACA is at risk. “This is what he’s being told by different attorneys, that if it goes to court it might not survive,” Lapan said. Congress is “leaving it in the hands of the courts to make a decision” if legislation does not pass.
