August 2021 Cover Story - Deferred Action for Childhood Arrivals, Explained

by Genevieve K. Maciel

On his first day in office, President Biden issued a memorandum noting his intention to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) program. This program allows certain undocumented young people to request temporary protection from deportation and the right to work in the United States. Since its inception in 2012, DACA has benefited over 800,000 people.

On average, DACA recipients were only six years old when brought to the United States. Over 70% of them have a spouse, child, or sibling who is a U.S. citizen.

Benefits of Deferred Action
While DACA does not provide a path to permanent residence or citizenship, recipients are entitled to several benefits that allow them to support themselves and contribute to their local communities and economies. These include both freedom from the threat of deportation and employment authorization. With employment authorization, the DACA recipient may apply for a Social Security number and begin establishing credit.

Those with DACA are also eligible to apply for “Advanced Parole” to leave and re-enter the United States lawfully. Advanced Parole is only granted for short-term absences from the U.S. for humanitarian, educational, or employment purposes. Advanced Parole is most often sought so that the DACA recipient may visit a sick relative or pursue an academic or vocational opportunity.

The DACA program not only benefits individuals, but their communities as well. As the United States invests in education for undocumented students, many of these young people go on to pursue higher education and professional careers in the United States. Tom K. Wong of the U.S. Immigration Policy Center at the University of California, San Diego, conducted his sixth annual survey of DACA recipients in the late summer of 2020, located at https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf. Wong’s survey revealed that more than half of the respondents who were employed were working as essential workers during the COVID-19 pandemic. An estimated 30,000 DACA recipients are currently working in the health care industry as our country battles COVID-19.

In addition to the loss of talent we risk if young people cannot fully integrate and contribute to our communities, the DACA program also has public health and safety implications. The security of having deferred action increases the likelihood that DACA recipients will seek help from law enforcement and other county agencies. When asked how they would respond if they no longer had DACA, survey respondents reported that they would be 30.6% less likely to report a crime to the police, 58% less likely to do business that required them to disclose personal information, and 39.3% less likely to seek treatment or testing for COVID.

The purchasing power of DACA recipients is also significant: 65.1% of survey respondents were able to buy their first car after receiving DACA. Such large purchases bring in sales tax, along with registration and title fees. Twenty percent of respondents reported buying their first home after obtaining DACA. Home purchases positively affect the economy by creating new jobs and infusing spending in local communities.

History of the DACA Program
In June 2012, then President Obama initiated DACA by executive order. His administration instructed the Department of Homeland Security (DHS) to exercise prosecutorial discretion for certain undocumented persons. Obama’s order was seen as a response to nationwide disappointment after the failure of the DREAM Act, which would have afforded immigration status to undocumented individuals who grew up in the United States. The administration directed the DHS to deprioritize removal for those who had been brought to the United States as children, had obeyed U.S. laws, and had pursued their education or military service. In the DHS memorandum implementing DACA, then DHS Secretary Janet Napolitano wrote that “[o]ur Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.”

Deferred action has been used since the 1960s as an administrative tool to delay the removal of an undocumented immigrant. The Reagan and Bush administrations authorized a similar form of administrative relief known then as “indefinite voluntary departure.” This program deferred the deportations of roughly 1.5 million spouses and minor children who did not qualify for immigration status under the Immigration Reform and Control Act of 1986. This was referred to as the “Family Fairness” program and was meant to ensure family unity.

The DACA program continued to suffer major setbacks under the Trump administration. In September 2017, then Attorney General Jeff Sessions directed then Acting Secretary of DHS, Elaine C. Duke, to “wind down” the DACA program. Acting Secretary Duke followed the AG’s directive and ordered that no new DACA applications be accepted. Duke did allow for DACA recipients whose status was going to expire within six months to renew their status. Other DACA recipients’ work permits and benefits would expire on their own terms and not be renewed.

Several groups of plaintiffs quickly challenged Duke’s decision in three district courts. These plaintiffs included individual DACA recipients, such as Dr. Jirayut Latthivongskorn, one of tens of thousands of medical professionals with DACA. Plaintiffs also included groups such as the NAACP and the Regents of the University of California. They argued that Duke’s rescission was arbitrary and capricious and infringed on the Equal Protection Clause of the Fifth Amendment. All three district courts ultimately ruled in favor of the plaintiffs. The government appealed these decisions to the Second, Ninth, and D.C. Circuit Courts of Appeal. After the Ninth Circuit affirmed the lower court’s decision, the U.S. Supreme Court granted certiorari and consolidated the cases for argument.

On June 18, 2020, the Supreme Court issued its decision in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020). In its decision, the Court blocked the Trump administration’s attempt to rescind DACA, finding that the DHS failed to adequately explain the basis for its decision and failed to consider reliance on the program. The decision did not reach the merits of the DACA program but found that the administration had violated the Administrative Procedures Act by failing to sufficiently justify its decision.

The following month, however, the Trump administration issued a memo again attempting to limit the DACA program. This came to be known as the “Wolf Memo” because of its author, then DHS Acting Secretary Chad Wolf. In this memo, the DHS announced that it would only grant one-year renewals of DACA and simply reject all new DACA applications. On Dec. 4, 2020, however, the U.S. District Court for the Eastern District of New York vacated the Wolf Memo holding that Wolf was not lawfully serving as Acting DHS Secretary when he issued his memo. See Batalla Vidal, et al. v. Wolf, et al., 16-CV-4756 (NGG) (VMS) (E.D.N.Y.); see also New York v. Trump, 17-CV-5228 (NGG) (VMS) (E.D.N.Y.). In compliance with the district court’s order, U.S. Citizenship and Immigration Services then issued a notice that it would begin accepting initial DACA applications, in addition to renewal requests. Biden’s day-one memo reinforces that December 2020 USCIS policy.

To request deferred action under the DACA program, applicants must meet several requirements. These include that the applicant: (1) was born on or after June 16, 1981; (2) came to the United States before the age of sixteen; (3) has lived continuously in the United States from June 15, 2007, until the present time; (4) was physically present in the United States on June 15, 2012; (5) entered the United States without inspection, or had their lawful immigration status expire as of June 15, 2012; (6) is currently in school, has graduated high school, obtained a GED, or was honorably discharged from the U.S. Coast Guard or Armed Forces; (7) has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors; and (8) is at least fifteen years old at the time of filing the application (unless in removal proceedings before an immigration judge).

Most Americans favor a pathway to legalize the status of those who as children were brought to the United States without legal status. Many of these children were unaware of their unlawful status until they applied for driver’s licenses or admission to college. These children, many of them now adults, have been educated and raised in the United States and have contributed to our economy, culture, and society. Comprehensive immigration legislation must be passed to address this issue and to reap the rewards of America’s investment in their education and upbringing.

Note: As this issue was going to press, on July 16, 2021, the U.S. District Court, Southern District of Texas prohibited the Department of Homeland Security from approving new applications and issued a permanent injunction vacating the memo that created DACA in 2012. The Department of Justice has vowed to appeal the decision. Texas v. United States, 1:18-CV-00068 (S.D. Texas July 16, 2021).

Genevieve K. Maciel is an Associate Attorney at U.S. Immigration Law Group, LLP, practicing exclusively in immigration law. She can be reached at Gen@usilg.net.