Rescission of the DACA Program
DACA Program Rescinded
The Department of Homeland Security has officially rescinded the program known as DACA, or Deferred Action for Childhood Arrivals. The announcement came following a policy decision by President Trump, and a concurring legal opinion by Attorney General Jeff Sessions.
In his statement, President Trump specified that the reason for gradually ending DACA over a six-month period is “to provide a window of opportunity for Congress to finally act” to address the issue of individuals who have become known as “Dreamers” – individuals who were brought to the United States illegally as children.
During his presidential campaign, Donald Trump had promised to end DACA immediately upon taking office. However, in February he stated he would deal with the DACA program “with heart.” There has been significant pressure on both sides of the issue, with reports that the majority of Americans are in favor of some degree of protection for “Dreamers,” and prominent Republicans speaking out in favor of retaining the program. However, the Attorneys General of nine states, including Texas, threatened to sue if the Administration did not end DACA by September 5, 2017.
Whether Congress will be able to preserve DACA or provide a substitute form of protection for this class of undocumented immigrants is uncertain. On Friday there were indications that “conservative lawmakers” are in the process of drafting a bill that they are framing as a conservative “Dream Act,” which would give a pathway to permanent residence to individuals who were brought to the United States unlawfully as children.
What does DACA provide?
DACA is a form of prosecutorial discretion designed to offer some degree of protection for individuals who were brought to the United States illegally as children. Eligible individuals could apply for a deferral of removal from the United States (temporary protection from deportation), as well as a permit to work in the U.S. DACA protection and work authorization was granted in 2-year increments.
Created by President Obama via executive order, DACA has been in place since 2012. According to government statistics DACA has benefited approximately 800,000 individuals.
How will the change be implemented?
The Administration and DHS have promised “an orderly wind down” of the program.
- Current DACA beneficiaries: Those who have already been granted deferred action and hold valid Employment Authorization Documents will retain those benefits until they expire. DACA benefits are generally valid in two-year increments. However, as was the case under the DACA program, DHS can still terminate or revoke DACA protection and work authorization in its discretion, as DACA is a form of prosecutorial discretion.
- Those with an initial DACA request pending adjudication with USCIS: USCIS will adjudicate all properly filed initial requests for DACA protection and EADs filed (received by USCIS) on or before September 5, 2017.
- Those with a request for renewal of DACA protection pending adjudication with USCIS: USCIS will adjudicate all properly filed requests for renewal of DACA protection and EADs which were filed on or before September 5, 2017.
- Those whose DACA protection will expire between September 5, 2017 and March 5, 2018: May apply for renewal if the request is filed (received by USCIS) on or before October 5, 2017.
- Once an individual’s DACA protection expires: The individual will revert to unprotected undocumented status. DHS has stated that it will not proactively refer former DACA holders to ICE and CBP, unless the person is an enforcement priority (for example, threat to national security, a public safety threat, has engaged in fraud, or has committed a crime). Also, President Trump stated he advised DHS that DACA recipients are “not enforcement priorities,” unless they are “criminals,” or are otherwise involved in criminal or gang activity. This position reflects a departure from policy established by an internal ICE memorandum that required agents to arrest all unauthorized immigrants whom they “encounter,” regardless of whether they are otherwise priorities for removal.
- International travel for DACA beneficiaries: Effective September 5, 2017, USCIS will no longer approve any requests for advance parole (travel) documents. USCIS advises that those with a current advance parole document may retain the benefit until it expires, but that CBP “will retain the authority it has always exercised in determining the admissibility of any person presenting at the border,” and that “USCIS retains the authority to revoke or terminate an advance parole document at any time.” Given the uncertainty of the overall situation, LAC strongly advises holders of DACA-based advance parole documents not to travel internationally absent an emergency.
What are the eligibility criteria for DACA?
Individuals meeting the following criteria could apply for DACA:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching their 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
- Had no lawful status on June 15, 2012;
- Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
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