A Dream Deferred Again: The End of DACA

by Lane Powell PC

For decades versions of The DREAM Act were proposed in Congress with the intent of providing some relief for young people who entered the United States without express authorization as children, and who met certain requirements.  These “dreamers,” however, could get no relief as the proposed bills never passed.  On June 15, 2012 the Obama Administration published a memorandum announcing the DACA program, which provided relief the Dream Act could not.  On September 5, 2017, after urging by the Trump Administration, the Department of Homeland Security officially rescinded the DACA program.

What Is the DACA Program?

Deferred Action for Childhood Arrivals (DACA) is a program that provides temporary relief from deportation to certain under-documented individuals who were brought to the United States as children.  To be eligible for DACA an applicant must have:

  1. Been 30 or younger on June 15, 2012;
  2. Come to the United States at age 15 or younger;
  3. Continuously resided in the United States from June 15, 2007 through the date of their DACA application;
  4. Been physically present in the United States on June 15, 2012;
  5. Been in high school, graduated from high school or received a GED; or have been an honorably discharged veteran of the U.S. Coast Guard or armed forces;
  6. Been convicted for no felonies, no significant misdemeanors, and no more than three other misdemeanors – nor otherwise posed a threat to national security; and
  7. Had no lawful status on June 15, 2012.

DACA applicants were required to affirmatively apply for this benefit and the DHS reviewed and adjudicated each application.  Foreseeably, many of those who qualified for DACA feared that providing their information – including their address where other under-documented family members may have lived – to the government could lead to a deportation in future, even if that is exactly what DACA promised to protect against.  Many applicants waited until a year after the program’s inception to apply.  Today, nearly 800,000 people have been approved for DACA.

What Benefits did DACA Provide?

A DACA approval did not provide a path to citizenship, nor did it grant asylum or refugee status.  In fact, the government has been clear that recipients of DACA are technically still unlawfully present in the United States.  “Deferred action” means exactly what it implies:  the government may temporarily defer the action of deporting qualified applicants.  The 2012 executive action was an effort to allocate the enforcement resources of the Department of Homeland Security (DHS) more effectively.  If DHS officers were not arresting and deporting children, college students, and – otherwise – law abiding young adults, then they could focus on dangerous criminals who were in the United States without authorization.

In addition to a grant of deferred action from deportation, a DACA approval meant that the recipient could apply for authorization to work and travel.  The importance of work authorization meant that the dreamers could “come out of the shadows” to apply for a social security card, get a driver’s license, accept employment, and pay taxes.

What Has Changed?

On September 5, 2017 the Trump Administration announced the recession of the DACA program.  On that same day President Trump released a statement arguing that only Congress, and not the Executive branch, should  grant DACA-related benefits.  The President gave Congress a deadline of six months, until March 5, 2018, to pass a replacement bill.

How Does This Affect Current Workers and Travelers?

DHS released a series of Frequently Asked Questions and answers when it rescinded DACA.

After September 5, 2017 the DHS will no longer accept new applications for the DACA benefit.  DACA recipients with current work authorization may continue to work until their current employment authorization document (EAD) expires.

Until October 5, 2017, DHS will continue to accept renewal applications for anyone whose DACA or EAD expires between September 5, 2017 and March 5, 2018.  Those renewal applications are expected to be approved for two years.  DHS will still accept applications to replace EADs that have been lost, stolen or destroyed.

DHS will accept no new applications for travel authorization (called “Advance Parole”).  Pending applications will be closed (“denied”) and the application fee will be returned.  DHS will, however, recognize previously-granted travel periods so persons who are outside the United States with Advance Parole under DACA are urged to return to the U.S. before the authorization expires.  DHS has always maintained that Advance Parole does not guarantee admission into the United States, and the government may terminate or revoke that benefit at any time.  Therefore, even persons who have unexpired Advance Parole should carefully consider trips outside the United States.

Will Persons with Expired DACA be Deported?

Persons with unexpired DACA maintain deferred action protection and should not be arrested or deported by DHS unless a new criminal action or other factor makes that person ineligible for DACA.

DHS also states that information provided in DACA applications will not be proactively provided to the enforcement agencies of DHS (Immigration and Customs Enforcement or “ICE” and Customs and Border Protection or “CBP”) for the purposes of initiating deportation proceedings.  However, if ICE requests the information and the person meets the requirements for deportation, the DACA information may be provided to ICE.

What Options are Available for DACA Recipients?

Persons with expiring grants of DACA or EADs may reach out to their employers and immigration attorneys to review eligibility for the EAD extension or other forms of relief from deportation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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