On September 5, 2017, Attorney General Jeff Sessions announced the termination of the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The Trump administration will end the program on March 6, 2018, with the stated goal of prompting Congress to pass more permanent legislation that provides status to current DACA recipients before the March deadline.
Although President Trump pledged to eliminate DACA during his presidential campaign, he continued it after taking office, even after rescinding Obama’s other executive actions that had been blocked by the courts, stating that he had “great heart for these kids.” The timing of his decision to rescind was prompted by a July 2017 letter from Texas Attorney General Ken Paxton and 10 other attorneys general and governors sent to Sessions that threatened to legally challenge the DACA program. During the announcement, Sessions noted his opinion that the DACA program was not constitutional and could not be successfully defended, and cited concerns about rule of law and Congress’ role in developing immigration policy to justify the program’s elimination.
Under DACA, created by President Obama in 2012, United States Citizenship and Immigration Services (USCIS) allowed undocumented immigrants who came to the country as children to apply for renewable “deferred action” that protections them from deportation and gives them authorization to work for two years if applicants meet age, education, and other requirements. As of June 2017, USCIS had approved 793,026 initial requests and 895,574 renewals for the program.
The prospect of the program’s elimination—and the number of individuals affected by the decision—has led congressional Republicans and Democrats to introduce several bills that would provide protection for the DACA recipients.
In order to implement the administration’s decision to eliminate DACA, the Department of Homeland Security issued a memo immediately following the administration’s announcement. The core of the memo’s guidelines for winding down the program revolve around four key provisions:
- USCIS will no longer accept new DACA applications filed after September 5, 2017.
- USCIS will review and approve DACA applications on a case-by-case basis that DACA-eligible individuals filed before September 5, 2017.
- Individuals who currently have DACA status and any related work authorizations will retain them until the expiration of their current authorization.
- If an individual’s DACA authorization will expire before March 6, 2018, DHS will allow them to apply for another two-year extension as long as the application is received by October 5, 2017. (Note DHS is reported to be considering extending this deadline and a lawsuit has been filed to block Trump’s actions.)
The program’s elimination will generate a significant number of expirations. The CATO Institute estimates a total of 784,459 grants will expire by 2020. However, the six-month delay could allow 190,822 individuals to renew their two-year permits before March 5, 2018. As of September 21, 2017, USCIS estimates that 96,600 individuals who are eligible for renewal before the October 5 deadline have not yet submitted this request. More importantly, the agency also estimates that 535,100 individuals will lose their DACA status after March 5 through September 2019.
The program’s elimination raises questions over whether DACA recipients will become immediate targets for deportation after their status expires. A February 2017 DHS memo explicitly stated that Immigration and Customs Enforcement (ICE) can remove any individuals without legal status; the Enforcement and Removal Operations Division of ICE also issued a memo that allows its agents to detain these individuals during the regular course of their duties. It is true that DACA recipients can face deportation after their status expires, but DHS is denying that they will be specifically targeted for removal and President Trump has tweeted that they “should not worry.” However, ongoing ICE arrests of individuals who are not specific enforcement targets in conjunction with other enforcement operations means that most DACA recipients will continue to worry about their status unless or until Congress or the president takes action to give them more permanent status.
One key question as the program is wound down involves whether the personal information of DACA recipients submitted in their applications to USCIS could be shared with ICE for future deportation efforts. Although the DHS memo does not address this issue, DHS officials stated during a press call on September 5 that they will not destroy this data. The agency will also maintain current DHS policies that give law enforcement agencies, including ICE, access to this information if the recipient is part of a criminal or national security investigation or is subject to a Notice to Appear for removal proceedings. The officials also stated that these policies could change in the future. It is unlikely that DHS will issue any additional specific policies on this issue, so it may be that individuals will only learn if their information was shared after they are arrested.
The prospect of the program’s elimination—and the number of individuals affected by the decision—has led congressional Republicans and Democrats to introduce several bills that would provide protection for the DACA recipients. In addition to the bipartisan Bar Removal of Individuals Who Dream and Grow Our Economy (BRIDGE) Act, which would provide eligible undocumented individuals with protection from deportation for three years, Congress has also introduced the bipartisan Development, Relief, and Education for Alien Minors (DREAM) Act and the Republican-sponsored Recognizing America’s Children (RAC) Act that would provide undocumented individuals with permanent protection from deportation and a pathway to citizenship, albeit with different time frames and application processes. As the administration passes the responsibility of crafting a bill to Congress, it remains to be seen which of these bills emerges as a permanent solution for the 800,000 or more DACA recipients in the United States.