Decoding DACA

• The Obama administration created the Deferred Action for Childhood Arrivals – DACA – program, asserting it had “prosecutorial discretion” not to deport people who were brought to the U.S. as children and who have no legal status.
• There are now around 800,000 people receiving deportation relief from DACA.
• On September 5, the Trump administration announced the beginning of a six-month wind-down period for DACA.

On September 5, the Trump administration announced it would begin winding down the Deferred Action for Childhood Arrivals program. DACA granted a two-year work authorization and removal relief to people without legal status who had entered the U.S. before they were 16 years old. Under the administration’s plan, work permits and immigration relief issued under DACA will begin expiring without the opportunity for renewal on March 5, 2018.

Background

DACA was established by the Obama administration in a June 2012 memorandum issued by Secretary of Homeland Security Janet Napolitano. On the day DACA was established, President Obama said his administration was acting because Congress had not passed the DREAM Act. That legislation would have given legal status to unlawfully present immigrants who had entered the United States before they were 16 years old. In his announcement, President Obama called DACA a “temporary stopgap measure” and said that because DACA was “temporary, Congress needs to act.”

Trump Administration DACA Wind-Down Timeline

The Obama administration styled the program as an exercise of “prosecutorial discretion” by DHS. They argued the Immigration and Nationality Act gave the government authority to set priorities for immigration enforcement and that DACA was simply a systematized way not to spend limited resources on DACA-eligible people. 

People who were eligible for DACA included those who had entered the United States illegally and those who entered legally but lost their lawful status by overstaying their visas or violating the terms of their admission to the United States. DACA relief was available to people between the ages of 15 and 31 who met all of the following criteria:

• entered the U.S. prior to age 16;
• had no lawful status on June 15, 2012;
• were physically present in the U.S. on June 15, 2012, and at the time of filing a request for DACA;
• had continuously resided in the U.S. since June 15, 2007;
• were in school, had graduated from high school, had obtained a GED, or had served in the U.S. armed forces or Coast Guard; and
• had not been convicted of a felony, a “significant misdemeanor,” or three or more misdemeanors, and did not otherwise pose a “threat to national security or public safety.”

To be granted DACA relief, potential recipients were required to file an application with DHS. The applicant had to supply his or her full legal name, date of birth, current and past addresses, criminal history, immigration status, and documents proving that he or she met the eligibility requirements for the program.

Approved recipients received relief from potential deportation for two years. They also could receive a permit that allowed them to work legally in the U.S. for the two-year period. DACA recipients were required to reapply for renewal of their work authorization and deferred action every two years. DHS could terminate a recipient’s deferred action at any time, especially in instances where the person committed a crime after getting DACA relief.

Recipients generally did not receive travel documents, such as a passport, as part of their benefits. They could, however, apply for “advance parole” – a travel document allowing the alien to leave the United States temporarily and return – at the discretion of DHS for educational, employment, or humanitarian purposes. Some observers, including Judiciary Committee Chairman Chuck Grassley, have expressed concern that these travel documents allowed some DACA recipients to adjust their immigration status, receive a green card, and ultimately gain citizenship even though President Obama specifically said that DACA did not provide “a path to citizenship.” Immigration law bars anyone “who was not admitted or paroled following inspection by an immigration officer” from applying for a green card. By contrast, people who entered on a valid visa but later lost legal status face no such bar. If a DACA recipient initially entered the country without inspection and then re-entered using a DACA-based advance parole document, he potentially would no longer be barred from adjusting his status to “lawful permanent residence.”

DHS reported that by the end of 2015 there were 2,944 DACA recipients who had been approved for advance parole and later successfully got green cards. The department said that it would be “cost prohibitive and significantly burdensome” to identify how many of these cases involved people using advance parole to establish lawful entry and how many involved people who were otherwise eligible for adjustment irrespective of the grant of advance parole.

Through the second quarter of 2017, DHS had received 936,394 initial requests for DACA relief and granted relief to 787,580 people. Of the requests, 49,580 were rejected at initial intake and another 67,867 were ultimately denied. DHS has also received 952,917 requests for renewal of DACA relief over the life of the program and granted 799,077 renewals, including for some who received multiple renewals. According to a 2015 Brookings Institution report, 31 percent of DACA applicants arrived in the U.S. when they were five years old or younger; 37 percent arrived between the ages of six and 10; and 31 percent entered when they were 11 or older.

Attempted expansion in 2014

In November 2014, the Obama administration continued its executive actions on immigration by expanding DACA and establishing the Deferred Action for Parents of Americans and Lawful Permanent Residents program. DAPA allowed parents of U.S. citizens or lawful permanent residents to remain in the country and receive a three-year work authorization. The administration expanded DACA by removing the 31-year age cap and making later-arriving immigrants eligible. It also extended the length of DACA immigration relief and work authorization from two to three years.

Twenty-six states challenged the DACA expansion and DAPA program in federal court, and in 2015 a Southern District of Texas court enjoined implementation of the program. The court determined the states were likely to succeed on their claim that DAPA’s creation and DACA’s expansion did not comply with the Administrative Procedure Act. It rejected the Obama administration’s arguments that the Immigration and Nationality Act gave the secretary of homeland security sufficient discretion for implementing DAPA. The court explained that the “DHS Secretary is not just rewriting the laws” but instead “creating them from scratch.”

The Fifth Circuit Court of Appeals agreed and added that DAPA was “manifestly contrary to” the Immigration and Nationality Act. In June 2016 decision, the Supreme Court affirmed the Fifth Circuit’s decision by a vote of 4 to 4, effectively ending DAPA and the DACA expansion. The Trump administration officially rescinded DAPA in June of this year, although the litigation is still pending and is currently stayed. Given the courts’ reasoning in enjoining DAPA and the DACA expansion, many observers, including at least one senior Obama administration official, predicted that the original DACA program would be struck down if challenged by the same group of plaintiffs.

the wind-down

On September 5, DHS announced that it would no longer accept new applications for DACA relief, effective immediately. Current DACA enrollees will be able to work until their two-year work authorizations expire. People whose work authorizations will expire by March 5, 2018 – six months from the announcement – can apply for two-year renewals until October 5. DHS will continue to adjudicate already-filed DACA initial requests on a case-by-case basis. It will no longer issue new advance parole documents to DACA recipients.

The announcement of the DACA rescission followed a recommendation from Attorney General Jeff Sessions. In the letter to acting DHS Secretary Elaine Duke transmitting his recommendation, Attorney General Sessions wrote that “DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date.” He called such “an open-ended circumvention of immigration laws” an “unconstitutional exercise of authority by the Executive Branch.”

In announcing the end of DACA, the administration also highlighted policy concerns with the program. President Trump noted that the “temporary implementation of DACA by the Obama Administration, after Congress repeatedly rejected this amnesty-first approach, also helped spur a humanitarian crisis – the massive surge of unaccompanied minors from Central America.” This surge involved a significant increase in the number of unaccompanied children apprehended on the southwest border between fiscal years 2013 and 2014. Many observers identified the misperception that children crossing the border would qualify for DACA as driving the increase.

In late June, state attorneys general involved in the DAPA litigation wrote a letter to Attorney General Sessions alerting him that they planned to add a challenge to the existing DACA program to the pending DAPA litigation if the president did not agree to cancel DACA by September 5. Attorney General Sessions’ letter recognized this risk, and he noted that since the “DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Acting DHS Secretary Duke agreed, explaining that the litigation risk could “allow the judiciary to potentially shut the program down completely and immediately.” For this reason, the administration decided to “wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation.”