Rescission Of Deferred Action For Childhood Arrivals DACA Program: Important Information You Need To Know

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On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the program known as Deferred Action for Childhood Arrivals (DACA) pursuant to President Donald J. Trump’s decision to terminate DACA.  On the same day the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) issued an official memorandum outlining how it will wind down the program. Former President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) Program (https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca) 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.

The USCIS Memorandum on the Rescission of DACA, states that in recognition of the complexities associated with winding down the program, that USCIS will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters (specified below) and effective immediately, USCIS:

  1. Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by USCIS as of the date of this memorandum.
  2. Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after September 5, 2017.
  3. Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the USCIS as of September 5, 2017, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by USCIS as of October 5, 2017.
  4. Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  5. Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods. [Emphasis added]
  6. Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.
  7. Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  8. Will continue to 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.

On September 5, the Department of Homeland Security also posted an FAQ on the Rescission of DACA on its website confirming answers to several key questions:

(i)          What is going to happen to current DACA holders?

Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.

(ii)        What happens to individuals who currently have an initial DACA request pending?

Due to the anticipated costs and administrative burdens associated with rejecting all pending initial requests, USCIS will adjudicate—on an individual, case-by-case basis—all properly filed DACA initial requests and associated applications for EADs that have been accepted as of September 5, 2017.

(iii)       What happens to individuals who currently have a request for renewal of DACA pending?

Due to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests, USCIS adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.  USCIS will reject all requests to renew DACA and associated applications for EADs filed after October 5, 2017.

(iv)       Is there still time for current DACA recipients to file a request to renew their DACA?

USCIS will only accept renewal requests and associated applications for EADs for the class of individuals described above in the time period described above.

(v)         Will individuals with expired DACA be considered illegally present in the country?

Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred.  When their period of deferred action expires or is terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment. Only Congress has the authority to amend the existing immigration laws.

(vi)       Once an individual’s DACA expires, will their case be referred to ICE for enforcement purposes?

Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(vii)      Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?

Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security or public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(viii)    Can deferred action received pursuant to DACA be terminated before it expires?

Yes.  DACA is an exercise of deferred action which is a form of prosecutorial discretion. Hence, DHS will continue to 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.

(ix)       Can DACA recipients whose valid EAD is lost, stolen, or destroyed request a new EAD during the phase out?

If an individual’s still-valid EAD is lost, stolen, or destroyed, they may request a replacement EAD by filing a new Form I-765.

(x)         Will DACA recipients still be able to travel outside of the United States while their DACA is valid?

Effective September 5, 2017, USCIS will no longer approve any new Form I-131 applications for advance parole under standards associated with the DACA program. Those with a current advance parole validity period from a previously-approved advance parole application will generally retain the benefit until it expires. However, CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the border. Further, USCIS retains the authority to revoke or terminate an advance parole document at any time.

The Department of Homeland Security reports that as of September 5, 2017:

  • From August through December 2017, 201,678 individuals are set to have their DACA/EADs expire. Of these individuals, 55,258 already have submitted requests for renewal of DACA to USCIS.
  • In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. Of these 275,344 individuals, 7,271 have submitted requests for renewal to USCIS.
  • From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire. Of these 321,920 individuals, eight have submitted requests for renewal of DACA to USCIS.

[View source.]

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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