All About DACA: Past, Present, and Future
In 2012, President Barack Obama announced that a specific class of immigrants – certain childhood arrivals, were now eligible for “deferred action.” This meant that while officially protected by federal deferred action via DACA, any potential removal proceedings would not occur. Obviously, such protections require recipients to (1) pass rigorous standards via application and (2) renew their status every two years. By doing this, the Obama administration recognized that these immigrants, all children when they arrived in the United States (U.S.), were an important part of the American economy. Roughly 800,000 immigrants participate in DACA. Because of DACA’s connection to the Development, Relief, and Education for Alien Minors, or DREAM, Act, program beneficiaries may also be called “Dreamers.” While lawmakers introduced and considered its first iteration in 2001, no version of the DREAM Act has ever officially passed into law.
DACA Faces Tough Challengers
Just six short years after its introduction, DACA is in danger of discontinuation. The Trump administration announced its intention to end the popular program in September 2017, calling it a “winding down.” After the president’s announcement, the Department of Homeland Security stopped accepting applications for both new beneficiaries as well as renewals for current Dreamers. This devastated the deserving young population of undocumented immigrants who had received privilege and protection through the program. But hope remains that DACA will continue to operate, allowing thousands of people to purse their dreams on American soil. This is due to vigorous legal challenges brought forth by human rights groups and other organizations. This article will review the past, present, and future of the DACA program.
Overview of DACA’s History
The Obama administration created the Deferred Action for Childhood Arrivals, or DACA, program in June 2012. The program provides “deferred action,” or relief from deportation, to those who arrived in the U.S. as children and meet a rigorous set of other requirements. According to the American Immigration Council (AIC), immigrant-rights activists hailed DACA “as a bold response to the broken immigration system.”
Yet, what benefits does DACA confer? And who can apply for the program?
Defining “Deferred Action”
The Department of Homeland Security (DHS) oversees immigration enforcement and removals, or deportations. If a person receives “deferred action” status, this means that DHS has reviewed their credentials and found the individual to be a “low priority” for removal. Deferred action status is not a guarantee of protection and protections are provided at the discretion of DHS, who can revoke rights without warning. Deferred action, while highly beneficial, has limited scope. While considered a “special” status, deferred action is not “lawful” status. For example, while DACA shields recipients from deportation, they have no way through the program to gain lawful permanent resident (LPR) status. Green card holders have LPR status, which does lead naturally to official U.S. citizenship with time and effort. Again, DACA recipients do not receive LPR benefits from the program. In fact, receiving deferred action status also does not provide:
- Amnesty or legal immunity;
- Lawful immigration status leading to green card eligibility;
- A path to naturalization or US citizenship; or
- Privileges for family members of deferred action beneficiaries.
If you have any questions about deferred action and its ramifications, consult the American Immigration Council’s Q&A Guide, which helped inform this article.
Who Can Apply for DACA?
Only specific people can apply for DACA. Thus U.S. Citizenship and Immigration Services (USCIS) lists specific requirements that applicants must meet in order to be DACA eligible. According to the USCIS, a person may request DACA if they:
- Arrived in the U.S. before turning 16;
- Were under the age of 31 when DACA was announced (June 15, 2012);
- Have established continuous residence on U.S. soil since June 15, 2007;
- Possessed no lawful status (i.e., no green card) on June 15, 2012;
- Were physically present in the U.S. on June 15, 2012 and on the date of DACA application filing;
- Are currently in school, graduated from high school or received a general education development (GED) certificate, or received honorable discharge from the U.S. Coast Guard or Armed Forces;
- Have not committed a felony or “significant misdemeanor,” or three or more lesser misdemeanors; and
- Pose no threat to national security or public safety.
Once a person receives DACA designation, they must reapply to continue their protected status. DACA designation expires every two years, so beneficiaries must apply for reconsideration at that time. You can read more about specific guidelines and procedures regarding DACA on the USCIS website.
DACA in Danger Under President Trump
As discussed earlier in this article, the Trump administration announced a “winding down” of DACA in September 2017. At that point, DHS and USCIS halted consideration of new DACA applications, as well as renewals after March 6, 2018. Obviously, this devastated a large population of American youth, many of whom benefit the U.S. in a multitude of ways. While several lawsuits filed against the Trump administration had positive outcomes for DACA and its Dreamers, this article will highlight two court decisions and their ramifications.
August 2018 Court Ruling
In August, a federally-appointed judge in Washington D.C. ruled that the Trump administration was required to “fully restore” the DACA program. According to Judge John Bates, the federal government had not provided adequate reasoning or rationale for its discontinuation of DACA. Continuing, Judge Bates called the Trump administration’s reasoning for ending DACA “arbitrary and capricious.” Judge Bates did elaborate, though, on the powers the Trump administration holds to end DACA. Bates explained that DHS did, in fact, have the “statutory [and] constitutional authority to rescind the DACA program.” Thus, the court ruled in favor of DACA not because the Trump administration lacked the authority to dismantle it, but because it did not provide a “rational explanation for its decision.”
This victory in court provided hope for DACA recipients, yet the program has not been reinstated in full. Injunctions ordered in January 2018 already ensured that current beneficiaries of the program were able to file for renewals. This new ruling continued the trend, reasserting the legal requirement for continuation of DACA renewals. Yet, the program has not yet begun accepting new applicants as DHS appeals recent rulings. No courts have forced DHS to accept new applications.
November 2018 Court Ruling
On November 8, 2018, an appeals court denied an appeal request by the Trump administration. Consisting of a three-judge panel, the court resides in the Ninth U.S. Circuit Court in San Francisco. The Wall Street Journal reported that the California Attorney General called the decision a “tremendous victory for our young immigrant dreamers and the rule of law.” To support its decision, the court cited similar reasoning as Judge Bates in his August 2018 ruling. The court again did not state that the Trump administration did not possess the express authority to dissemble the DACA program. Rather, the court named the administration’s reasoning for the cancellation as “erroneous.” Additionally, the court added that the administration’s decision, based on “erroneous” legal premise, was “arbitrary and capricious under settled law.”
The Justice Department responded, stating that it was “pleased” that the ruling occurred, opening the path to the Supreme Court. Further, a spokesman stated that the administration “will continue to vigorously defend its position on this matter, and looks forward to vindicating that position before the Supreme Court.”
The Future of DACA
Now that an appeals court has ruled against the Trump administration, it is likely that the future of DACA sits with the Supreme Court. With the addition of two new judges, Neil Gorsuch and Brett Kavanaugh, with conservative legal histories, it’s unclear what the Court will decide should it hear the DACA case. Considering the critical implications of this case, U.S. citizens and immigrants should expect the Supreme Court to accept the case for consideration.
DACA Beneficiaries Should Contact Expert Immigration Counsel
At the current moment, the future of DACA is uncertain. As a result of the dramatic events of the past year, DACA’s court journey will likely conclude at the Supreme Court. And at this point, it is impossible to know what the Court will decide. If you or a loved one current benefit from DACA, hope exists. But, immigration law and government requirements are very complicated – you shouldn’t face it alone. Prepare yourself for the future and defend your rights. Protect yourself from delays and denials by working with a skilled and qualified immigration attorney. Call the experienced lawyers at Nanthaveth & Associates today to schedule a free consultation.
 Kendall, B. (2018, November 8). Appeals Court Rules Against Trump on Canceling DACA Protections. The Wall Street Journal. Retrieved from https://www.wsj.com.