Secretary 

U.S. Department of Homeland Security 

Washington, DC 20528 

July 28, 2020 

MEMORANDUM FOR: Mark Morgan 

Senior Official Performing the Duties of Commissioner 

U.S. Customs and Border Protection 

Matthew Albence 

Senior Official Performing the Duties of Director 

U.S. Immigration and Customs Enforcement 

Joseph Edlow 

Deputy Director of Policy 

FROM: 

SUBJECT: 

U.S. Citizenship and Immigration Services 

Chad F. Wolf 

Acting Secretary 

Reconsideration of the June 15, 2012 Memorandum 

Entitled “Exercising Prosecutorial Discretion with Respect to 

Individuals Who Came to the United States as Children”

On June 15, 2012, Secretary of Homeland Security Janet Napolitano established the policy 

known as Deferred Action for Childhood Arrivals (DACA) through a memorandum entitled 

“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States 

as Children.” Ever since, the policy has been subject to substantial controversy. In recent years, 

Acting Secretary of Homeland Security Elaine Duke and Secretary of Homeland Security 

Kirstjen Nielsen concluded that the DACA policy should be fully rescinded and issued additional 

memoranda in 2017 and 2018, respectively, to effect that decision. 

On June 18, 2020, the U.S. Supreme Court issued a decision that did not question the authority 

of the Department of Homeland Security (DHS) to rescind the DACA policy, but determined 

that the 2017 and 2018 memoranda had not complied with certain requirements for doing so. 

See Department of Homeland Security v. Regents of the University of California, Nos. 18-587, 

18-588, 18-589. Accordingly, the Court concluded that the rescission must be vacated and 

remanded to DHS so that it “may consider the problem anew.” Regents, Slip op. at 29.

By this memorandum, I am rescinding the 2017 and 2018 memoranda, and making certain 

immediate changes to the DACA policy to facilitate my thorough consideration of how to 

address DACA in light of the Supreme Court’s decision. For the reasons outlined below, 

pending my full reconsideration of the DACA policy, I direct DHS personnel to take all 

appropriate actions to reject all pending and future initial requests for DACA, to reject all 
 

 

 

 

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pending and future applications for advance parole absent exceptional circumstances, and to 

shorten DACA renewals consistent with the parameters established in this memorandum. 

Background 

On June 15, 2012, Secretary Napolitano issued the memorandum (Napolitano Memorandum) 

establishing the DACA policy. The policy provided for the granting of deferred action to certain 

individuals with no lawful immigration status “who were brought to this country as children” and 

who satisfied a list of additional specified criteria. The memorandum described this deferred 

action as an exercise of “prosecutorial discretion” to forbear from removing an alien who would 

otherwise be subject to removal. Under pre-existing regulations, a grant of deferred action made 

aliens eligible for certain other attendant benefits, such as work authorization. The memorandum 

directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and 

Immigration Services (USCIS) to establish procedures for granting deferred action and work 

authorization to eligible aliens for a two-year period, subject to renewal, and for notifying those 

aliens of DHS’s decision to do so. The memorandum stated, however, that it “confer[red] no 

substantive right, immigration status or pathway to citizenship.”

On November 20, 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum 

(Johnson Memorandum) to expand the DACA policy and establish a new, related policy known 

as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). With 

regard to DACA, this memorandum eliminated a criterion relating to the age of DACA 

requestors when the policy was announced, extended the deferred-action and work-authorization 

period from two to three years, and adjusted the date by which requestors must have entered the 

United States to be eligible for DACA. The DAPA policy allowed for deferred action to be 

provided to certain parents whose children are U.S. citizens or lawful permanent residents 

through a process similar to DACA. 

Shortly thereafter, the U.S. District Court for the Southern District of Texas issued a nationwide 

preliminary injunction preventing both the DAPA policy and the expansion of the DACA policy 

from taking effect. In 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed, holding 

that DAPA and expanded DACA likely violated both the Administrative Procedure Act (APA) 

and the Immigration and Nationality Act (INA). In 2016, the U.S. Supreme Court affirmed the 

court of appeals’ decision by an equally divided vote. On June 15, 2017, Secretary of Homeland 

Security John Kelly issued a memorandum rescinding the Johnson Memorandum. 

Also in June 2017, several of the state plaintiffs from the Texas lawsuit announced their intent to 

amend their complaint in the then still-pending litigation to challenge the original DACA policy 

as well. The States argued that the DACA policy was unlawful for the same reasons as the 

DAPA policy and the expansion of the DACA policy. On September 4, 2017, then-Attorney 

General Jefferson B. Sessions III issued a letter to Acting Secretary Duke (Sessions Letter), 

concluding that the DACA policy was indeed unlawful and likely would also be enjoined. 

On September 5, 2017, Acting Secretary Duke issued her memorandum (Duke Memorandum) 

rescinding the Napolitano Memorandum and initiating an orderly wind-down of the DACA 

policy. The Duke Memorandum explained that, “[t]aking into consideration the Supreme 

Court’s and the Fifth Circuit’s rulings” in the litigation concerning the Johnson Memorandum, 

and the Sessions Letter, it was clear to the Acting Secretary that the DACA policy “should be

terminated.”
 

 

 

 

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Litigation challenging the Duke Memorandum promptly ensued. As relevant here, suits were 

filed in the U.S. District Courts for the Northern District of California, Eastern District of New 

York, District of Maryland, and the District of Columbia. The District of Columbia district court 

vacated the rescission entirely, but stayed its ruling for 90 days to permit DHS to reissue a 

memorandum rescinding the DACA policy and providing a fuller explanation. 

In response to that ruling, on June 22, 2018, Secretary Nielsen issued an additional memorandum 

(Nielsen Memorandum) providing further explanation for the rescission of the DACA policy. 

The Nielsen Memorandum explained that “the DACA policy properly was—and should be—

rescinded, for several separate and independently sufficient reasons,” including that the policy is 

contrary to law; that, even if it were not unlawful, Secretary Nielsen lacked sufficient confidence 

in the policy’s legality to continue it; and that it was not sound enforcement policy in multiple

respects. Despite the Nielsen Memorandum, the District of Columbia district court declined to 

reconsider its previous order vacating the rescission. 

On June 18, 2020, having granted review in the California, New York, and D.C. cases, the U.S. 

Supreme Court held that the rescission of the DACA policy must be vacated. See Department of 

Homeland Security v. Regents of the University of California, Nos. 18-587, 18-588, 18-589. 

The Court observed that “[a]ll parties agree[d]” that “DHS may rescind DACA,” and the Court 

provided no reason to doubt that consensus. Slip op. at 9. But it held that DHS violated the 

APA in the manner in which it had rescinded the policy. 

As a threshold matter, the Court determined that, although agency non-enforcement decisions are 

generally not reviewable under the APA, the rescission of the DACA policy was reviewable 

“because DACA is not simply a non-enforcement policy.” Id. at 11. Rather, the Court stated, 

the Napolitano Memorandum “created a program for conferring affirmative immigration relief,”

the creation and rescission of which is subject to review under the APA. Id. And it added that 

the “benefits attendant to deferred action provide further confirmation that DACA is more than 

simply a non-enforcement policy.” Id.

On the merits, the Court found that when DHS rescinded the DACA policy, it failed to consider 

important aspects of the problem. In making that determination, the Court declined to consider 

the Nielsen Memorandum. Instead, the Court characterized that memorandum as an 

impermissible post hoc rationalization of the rescission, because in the Court’s view Secretary

Nielsen “chose to elaborate on the reasons for the initial rescission rather than take new 

administrative action.” Id. at 14. As to the Duke Memorandum, the Court held that it was 

arbitrary and capricious because (1) the Acting Secretary did not adequately consider whether 

DHS could and should address the illegality of the DACA policy by retaining the forbearance 

aspect of the policy (i.e., deferred action), while declining to make DACA recipients eligible for 

the other associated benefits, such as work authorization, id. at 17-23; and (2) the Acting 

Secretary did not adequately consider how, if at all, to address any “legitimate reliance ” on the

Napolitano Memorandum, id. at 23-26. The Court thus concluded that the rescission must be 

vacated and that the matter should be “remand[ed] to DHS so that it may consider the problem 

anew.” Id. at 29.

The Court affirmed the District of Columbia district court’s final judgment, vacated the Ninth 

Circuit’s affirmance of the preliminary injunction issued by the Northern District of California, 

and vacated the preliminary injunction issued by the Eastern District of New York. Id. 
 

 

 

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On June 30, 2020, Attorney General William Barr withdrew the Sessions Letter and directed the 

Department of Justice’s Office of Legal Counsel to withdraw all guidance it had provided to 

DHS on the legality of DACA and related deferred-action policies, including an Office of Legal 

Counsel opinion that briefly addressed the legality of DACA in connection with related deferredaction policies. Attorney General Barr explained that he did not “wish to maintain a

determination as the Attorney General about the legality of DACA that might constrain the 

discretion [I] otherwise possess as Acting Secretary of Homeland Security to consider whether 

and how to rescind DACA.”

Rescission of the Nielsen and Duke Memoranda, and Reconsideration of the Napolitano 

Memoranda 

In light of the Supreme Court’s decision to vacate the Duke Memorandum and remand to the 

Department of Homeland Security, and in my capacity as the Acting Secretary of Homeland 

Security, I am considering anew the DACA policy. To date, I have considered the Napolitano 

Memorandum itself, the Duke Memorandum and Acting Secretary Duke’s accompanying

statement, the Nielsen Memorandum, the administrative record produced in litigation 

challenging the Duke Memorandum, the briefs and joint appendix filed in the Supreme Court 

from that litigation, the joint appendix filed in the Fourth Circuit on appeal in the District of 

Maryland litigation, all of the judicial opinions issued in the litigation over the Duke 

Memorandum, including the June 18 decision of the Supreme Court, the letter from Attorney 

General Barr, and letters expressing support for the DACA policy that have been submitted to 

the President and DHS since the Supreme Court’s June 18 decision. 

As those materials demonstrate, whether to retain the DACA policy presents significant 

questions of law and legal policy. More importantly for present purposes, having considered 

those materials, I have concluded that the DACA policy, at a minimum, presents serious policy 

concerns that may warrant its full rescission. At the same time, I have concluded that fully 

rescinding the policy would be a significant administration decision that warrants additional 

careful consideration. Accordingly, in the exercise of my authority and discretion in establishing 

national immigration policies and priorities, see 8 U.S.C. § 1103(a)(1); 6 U.S.C. § 202(5), I am 

rescinding the Nielsen Memorandum and the Duke Memorandum, and making certain immediate 

changes to the DACA policy to mitigate my enforcement policy concerns while I conduct a full 

and careful consideration of a full rescission. Below, I address each of my enforcement policy 

concerns and then explain the immediate interim changes. 

Enforcement Policy Concerns: There are several reasons of enforcement policy that may 

warrant the full rescission of the DACA policy. 

First, even if the DACA policy could have been justified as a temporary measure when it was 

created, Congress arguably has had more than sufficient time to consider affording permanent 

status or immigration relief to the class of aliens covered by the policy. And yet, although 

various proposals have been advanced to do that, Congress has so far declined to take action. 

Particularly in the face of this failure to reach a legislative solution, I have serious doubts as to 

whether DHS should continue to provide either a reprieve from removal or a grant of attendant 

benefits to more than half a million aliens through a broad, class-based deferred-action policy. 

By contrast, rescinding DACA entirely may well create a more pressing need for Congress to 

decide whether it wants to address this issue and the underlying conditions that led to a 
 

 

 

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population of this size to remain in the United States in violation of our immigration laws for so 

long, and any other efforts to reform our immigration system in a manner that advances the 

national interest. As unilateral executive action, the DACA policy necessarily lacks the 

permanence of statutory law; it is more akin to a stopgap measure. For example, DACA 

recipients, as such, are not entitled to become lawful permanent residents and are not on a path to 

citizenship. Congress is best positioned to address that and other concerns on a more permanent 

basis through duly enacted statutes. 

Second, there has been much debate about the discretion exercised by DHS personnel in 

implementing the DACA policy. In my view, however, regardless of the amount of discretion 

that has been exercised or could be exercised under the policy, I have reservations as a matter of 

policy about setting out a list of detailed criteria, and maintaining a formal process, for nonenforcement. I am concerned that doing so may tilt the scales in deciding which aliens should 

receive deferred action and may inhibit individualized consideration of each case, at least for a 

non-enforcement policy of this scale. 

Third, because DHS is a law enforcement agency, I am concerned about sending mixed 

messages about DHS’s intention to consistently enforce the immigration laws as Congress has 

written them. DACA makes clear that, for certain large classes of individuals, DHS will at least 

tolerate, if not affirmatively sanction, their ongoing violation of the immigration laws. I am 

deeply troubled that the message communicated by non-enforcement policies like DACA may 

contribute to the general problem of illegal immigration in a manner that is inconsistent with 

DHS’s law enforcement mission.

Fourth, these concerns are all the more pressing in the context of children. It is vitally important 

to convey a message that discourages individuals from undertaking what can often be a perilous 

journey to this country with no legitimate claim to enter or remain. Of course, the DACA policy 

would not apply to children who are sent or brought to this country today. But rescinding the 

DACA policy may further DHS’s efforts to discourage illegal immigration involving children 

going forward. By contrast, I am concerned that retaining the policy creates some risk of 

communicating the contrary message and encouraging such illegal conduct by suggesting a 

potential for similar future policies. 

Changes Pending Reconsideration of the DACA Policy: In accordance with the Supreme 

Court’s decision, I am determined to give careful consideration to whether the DACA policy 

should be maintained, rescinded, or modified. In the meantime, given my serious concerns about 

the policy, I have determined that some changes should immediately be made to the policy to 

limit its scope in the interim. First, while my reconsideration of the DACA policy continues, no 

new initial requests for DACA should be accepted. Second, advance parole should be granted to 

current DACA beneficiaries only in exceptional circumstances. Third, going forward, renewals 

of deferred action and the accompanying work authorization should be granted for one-year, 

rather than two-year, periods. 

These changes will mitigate my concerns without encroaching materially on the reliance interests 

that have been raised by individuals, organizations, and state and local governments during the 

course of the extensive litigation over the Duke and Nielsen Memoranda, and in recent letters to 

the President and DHS. As noted by the Supreme Court, these groups have argued that, as the 

Napolitano Memorandum itself stated, many DACA recipients were brought or sent to the 

country as children, through no fault of their own, and may have never known another home. 
 

 

 

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They assert that DACA recipients have structured their lives around the expectation that DHS 

would forbear from enforcing the immigration laws against them and have come to rely on the 

other associated benefits—like work authorization, Social Security, and Medicare, as well as 

advance parole—that are made available to DACA recipients. They point out that other parties, 

too, would be affected by the rescission of the DACA policy, including the family members, 

schools, employers, and employees of DACA recipients. They have offered estimates of the 

amount of economic activity DACA recipients generate and the federal, state, and local tax 

revenue that DACA recipients provide. And some have even argued that the current COVID-19 

and economic crises provide additional reasons to continue the DACA policy, in light of the 

many DACA recipients who have pursued careers in healthcare and other essential services or 

who serve in other critical roles in the workforce. 

Whatever the merits of these asserted reliance interests on the maintenance of the DACA policy, 

they are significantly lessened, if not entirely lacking, with regard to aliens who have never 

before received deferred action pursuant to the policy. And any reliance interests possessed by 

an alien or a third party within the United States on that alien’s ability to remain in the country 

does not depend on the extraordinary ability to come and go from the country as they please. In 

light of my concerns about the policy as a whole, I do not believe that, at least absent exceptional 

circumstances, DHS should continue to make the benefit of advance parole available while I 

reconsider whether the DACA policy itself should exist. Indeed, even after determining that 

DHS’s prior full rescission of the policy was likely unlawful, the district courts in the previous

litigation did not require DHS to consider requests for DACA from aliens who had not 

previously received it or to grant any requests for advance parole. Accordingly, that has been the 

status quo for more than two years. It makes sense to continue that approach while I reconsider 

whether to rescind or revise the policy. If I ultimately determine to maintain the policy, there is 

nothing in the policy that would preclude aliens from making an initial request for DACA or 

renewing requests for advance parole at that time. And, even in the interim, nothing in this 

memorandum precludes the exercise of deferred action on a truly individualized, case-by-case 

basis when and if warranted. 

Nor are the asserted reliance interests significantly affected by shortening the renewal periods 

from two years to one year. Shortening renewal periods granted during this reconsideration 

period will have the potential benefit of significantly lessening the lasting effects of the DACA 

policy if I ultimately decide to rescind it. And the costs will be limited in the meantime, because 

the aliens who currently have DACA grants and have structured their affairs based on their 

expectation of its continuance may still seek renewal. They will merely have to seek renewal on 

an annual, rather than biannual, basis. In a similar manner, the third parties who are benefiting 

from those aliens’ continued presence today will continue to receive the same derivative benefits 

that they are receiving as long as the aliens’ renewals continue—whether on an annual or biannual basis. Put differently, even assuming that aliens with DACA have legitimate reliance 

interests in being able to renew at all, they have minimal if any reliance interests in the length of 

each renewal period, especially since a grant of DACA was and remains revocable. 

I recognize that shortening renewal periods on a prospective basis will have the effect, during 

this interim period as I consider how to address the DACA policy, of increasing the total amount 

of renewal fees that an alien will be required to pay over a multi-year period. But the fee per 

application will remain constant, and the fee that DHS charges for the application is associated 

with the processing costs to DHS. DHS personnel should consider whether it is possible to 
 

 

 

 

 

 

 

 

 

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reduce renewal fees during this interim period of reconsideration. In my current view, however, 

even if renewal fees cannot be reduced, shortening the renewal period is still warranted by my 

strong desire to limit the scope of the policy during this interim period despite any additional fees 

incurred by DACA beneficiaries as a result. 

Finally, to further mitigate my concerns, I have determined that these changes should apply both 

to DACA and advance parole requests submitted after the issuance of this memorandum and 

requests that are currently pending before the agency. Since the issuance of the Supreme Court’s 

decision, DHS has, on an interim basis, generally held properly submitted initial requests for 

DACA in anticipation of potential policy changes. Since July 24, DHS has likewise, on an 

interim basis, held all requests for advanced parole from current DACA recipients.1 Consistent 

with the Court’s express remand for the agency’s reconsideration and the Napolitano 

Memorandum’s clear statement that it conferred no substantive rights, DHS did not expand 

beyond the status quo of the past several years for a few weeks while it was determining next 

steps. I now conclude that all pending and future requests should be treated in the same manner, 

rather than be subject to differential treatment depending on the fortuity of when DHS received 

the request within a short period of uncertainty. Nothing in the Napolitano Memo purports to 

preclude me from exercising my enforcement discretion to make these changes on an interim 

basis while I consider whether to make more substantial changes on a permanent basis. Even 

under the Napolitano Memo, no aliens had a legal entitlement to receive DACA—much less a 

legal entitlement to a particular renewal period. Nor can aliens with pending requests assert any 

meaningfully greater reliance interests in their initial or continued enjoyment of the policy and 

the attendant benefits than aliens who submit such requests after the issuance of this 

memorandum. 

Accordingly, effective immediately, DHS shall: 

• Reject all initial DACA requests and associated applications for Employment 

Authorization Documents, and refund all associated fees, without prejudice to re-filing 

such requests should DHS determine to begin accepting initial requests again in the 

future. 

• Adjudicate all pending and future properly submitted DACA renewal requests and 

associated applications for Employment Authorization Documents from current 

beneficiaries. 

• Limit the period of any deferred action granted pursuant to the DACA policy after the 

issuance of this memorandum (and thereby limit the period of any associated work 

authorization) to one year. 

• Refrain from terminating any grants of previously issued deferred action or revoking any 

Employment Authorization Documents based solely on the directives in this 

memorandum for the remaining duration of their validity periods. 

Prior to July 24, DHS’s treatment of advance parole requests from DACA recipients varied. Many were 

rejected, while some were accepted and receipted. To the extent any rejected requestor believes exceptional 

circumstances support his or her request, he or she may now renew the request for advance parole, and it will be 

adjudicated on the terms set forth in this memorandum. 

1 
 

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• Reject all pending and future Form I-131 applications for advance parole from 

beneficiaries of the DACA policy and refund all associated fees, absent exceptional 

circumstances. 

• Refrain from terminating any grants of previously approved advance parole based solely 

on the directives in this memorandum for the remaining duration of their validity periods. 

• Exercise its discretionary authority to terminate or deny deferred action at any time when 

immigration officials determine termination or denial of deferred action is appropriate. 

• Continue to comply with the information-sharing policy as reflected in the DACA 

Frequently Asked Questions issued alongside the Napolitano Memorandum, and as set 

forth in USCIS’s Form I-821D instructions. Nothing in this memorandum makes any 

change to that policy. 

* * * * * 

This document is not intended to, does not, and may not be relied upon to create any right or 

benefit, substantive or procedural, enforceable at law or equity by any party in any 

administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on 

the otherwise lawful enforcement or litigation prerogatives of DHS. Finally, if any aspect of the 

changes to the DACA policy in this memorandum is found to be unlawful, the remainder of the 

changes should nonetheless continue in effect.