DACA Update: Will the Program Be Terminated?

By Karlie Dunsky, Tejas Shah, and Karen Courtheoux - Franczek Radelet P.C.

September 1, 2017

President Donald Trump is expected to announce as early as this week or next week the future of the previous administration’s Deferred Action for Childhood Arrivals (DACA) program. News outlets have reported high level meetings this week to review the program’s status, and there is a significant risk that the President intends to announce termination of the program. Any such announcement would have significant consequences for DACA recipients, educational institutions, and the employers of DACA recipients.

Background:

The DACA program, which provides relief from removal through deferral of enforcement action, work authorization and, in some cases, eligibility for travel authorization to certain young people with strong U.S. ties and lacking criminal history, was initiated through executive action in 2012.  Since then, approximately 800,000 people have applied for and received benefits through the program. The program is funded through application fees, and benefits are granted in 2-year increments with the opportunity to reapply/renew by demonstrating continued eligibility. Importantly, DACA is not a legal status and instead represents a form of prosecutorial discretion and deferred action by the federal government.

The recent activity regarding DACA has been prompted by a letter that 10 states, led by the Attorney General of Texas, Ken Paxton, sent to the administration in June 2017. The letter informs the administration that if it does not act to withdraw and terminate the DACA program by September 5, these states would seek a declaration in federal court that the executive branch lacks the authority to provide DACA protection. While the administration has not publicly indicated how it will act on DACA, many news reports over the last two weeks have indicated that the administration is preparing to terminate the program.

In the meantime, there have also been legislative efforts to codify DACA. Approximately 4 separate bills, 2 of which have bipartisan support, have been proposed in Congress to provide legal status to DACA recipients, who are also known as “DREAMERs.” It is unclear whether any of these bills will gain traction in Congress.

What Might Termination of DACA Look Like?

It is unclear whether a potential termination of the DACA program would be prospective or immediate. That is: (1) would the program benefits be revoked and terminated immediately as of the announcement date; or (2) would beneficiaries retain DACA protection through the expiration date of their existing deferral, with U.S. Citizenship and Immigration Services (USCIS) suspending the approval of new and renewal DACA applications?

The impact of terminating DACA is that, either effective immediately or at a future date, the 800,000 current beneficiaries would experience the following:

Susceptibility to removal from the United States: Applicants have submitted extensive documentation of their presence to USCIS to obtain benefits. Given the current administration’s dismantling of prioritized removals, DACA recipients could be immediately subject to issuance of a Notice to Appear in Immigration Court for removal proceedings.

Termination of work authorization and loss of income: DACA beneficiaries have work authorization of limited duration. If such protection cannot be renewed, they would not qualify for continuing work authorization unless they independently qualify for an immigration benefit.

Inability to Travel Abroad Under Advance Parole or Return to the United States if Abroad: DACA recipients have been eligible to apply for Advance Parole, which is essentially advance permission to travel abroad based on certain compelling circumstances, with the likelihood of readmission to the U.S. If DACA is immediately terminated, a DACA recipient who is currently abroad with an Advance Parole document may become unable to return to the U.S. without a waiver as noted below.

Potential Inability to Apply for Readmission to the United States: Depending upon an individual’s specific history, a DACA recipient may be subject to the unlawful presence bars set forth in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Such bars could be for anywhere from 3 to 10 years, and notwithstanding the bar, a DACA recipient may also have difficulty qualifying for another independent visa to return to the U.S.

Individuals subject to the unlawful presence bar may be eligible to request a waiver of the bar if they have extremely close U.S. family ties, including an immediate relative who is a U.S. citizen or permanent resident. However, adjudication of a waiver can take months or longer, and approval is discretionary and based upon demonstration of extreme hardship to the U.S. relative.

Client Insights

K-12 and Higher Education Institutions:

Students Travelling Abroad: Of immediate concern are DACA recipients who have travelled outside of the U.S. to participate in study-abroad programs or for other reasons. Schools may wish to consider advising students who are currently outside the country to return to the U.S. immediately if they wish to avoid the risk of being unable to return to the U.S. Students preparing to depart should reconsider and enroll at a domestic campus this Fall instead. Schools should assess enrollment in such programs or proactively send notification to those enrolled in study abroad programs.

Impact on Students: K-12 and Higher Education Institutions should consider taking this opportunity to communicate with students, particularly if they know that a student is a DACA recipient, to provide accurate information. There is likely to be anxiety among DACA recipients and previous rumored instances of action on DACA has correlated with increased mental health issues and a spike in calls by DACA recipients to suicide hotlines.

It is important to remember that DACA recipients may not have self-identified or have been otherwise detected through enrollment processes, so institutions will need to exercise judgment on how to conduct outreach and distribute information on this emerging issue.

Employers:

The immediate impact on the work authorization of DACA recipients is uncertain and contingent upon the specifics of the administration’s forthcoming announcement. Employers are advised not to take any immediate action, including attempting to identify DACA recipients based on I-9s or making personnel decisions based on a potential loss of work authorization, as such actions substantially increase the risk of a charge of employment discrimination.