An Overview of the DACA Program
In the United States (U.S.), millions of children arrive in the country with their parents, growing up alongside American-born children. These children often feel that America is their home – they’ve grown up here, attended school, and feel a deep connection. The Deferred Action for Childhood Arrivals Program, known more universally as DACA, provides hope and opportunity for a generation of immigrants. DACA recipients deserve the chance to learn and build lives in America. Because of the protections provided by DACA, 97% of Dreamers are currently working or in school.
Throughout the U.S., over 650,000 people are DACA beneficiaries. In September 2017, despite the obvious benefits of the program, President Trump announced his intention to end it. This decision sent shock waves across the country, as the president was effectively proclaiming his intention to end DACA and likely deport its beneficiaries. Luckily, court rulings have provided relief for Dreamers, though the program is currently at a standstill, unable to accept new applicants.
This article provides a general overview of the DACA program, as well as the current court rulings that protect Dreamers. If you are a current DACA beneficiary with questions about your legal status and future, contact an expert immigration attorney.
When did DACA Start?
In 2012, President Barack Obama created the Deferred Action for Childhood Arrivals, or DACA, program. DACA built upon a previous precedent that has never managed to fully pass Congress into law. Known as the DREAM Act (Development, Relief, and Education for Alien Minors), versions of the law have been continually introduced since 2001. This is why DACA beneficiaries are often called “Dreamers.” DACA provided solid and real benefits for people who arrived in the U.S. as minors.
Understanding “Deferred Action”
“Deferred Action” is an interesting phrase. In order to understand its meaning and implications, it’s important to understand the basics of deportation. The Department of Homeland Security (DHS) is responsible, mainly through Immigration and Customs Enforcement (ICE), for identifying and deporting individuals who are either dangerous or in violation of U.S. immigration law. Unfortunately, Dreamers do not have any other legal status – making them potential targets for DHS.
If a person receives deferred action, this formally means that DHS has reviewed their credentials and deemed them “low priority” for deportation. Unfortunately, while deferred action is considered a “special” status, it is not “legal” status. This means that DHS can revoke deferred action status without warning, because protections are provided at the discretion of DHS. And because DACA provides no legal status, there is currently no path for beneficiaries to become green card holders and seek permanent residence via the program.
Again, deferred action simply means that DHS has deferred deportation or removal of a person receiving the status. Further, deferred action also DOES NOT provide:
- Amnesty or legal immunity;
- Lawful immigration status allowing for green card application;
- Any path for citizenship or naturalization; or
- Privileges for family members of beneficiaries (even DACA-eligible siblings must individually apply for benefits).
For anyone who has additional questions about deferred action, you can consult the American Immigration Council’s (AIC) excellent guide regarding DACA. You can also discuss your concerns with a qualified immigration lawyer, who will be able to provide astute guidance and advice.
Who is Eligible for DACA Benefits?
Only a very specific group of immigrants are eligible for DACA benefits. You can find DACA eligibility requirements on the U.S. Citizenship and Immigration Services’ (USCIS) website.
According to the USCIS, a person may be eligible for DACA benefits if they:
- Came to the U.S. before turning 16;
- Were under the age of 31 on June 15, 2012;
- Have resided continuously on U.S. soil since June 15, 2007;
- Had no lawful immigration status on June 15, 2012;
- Were physically present in the U.S. both on DACA’s creation and on the day of application filing;
- Are current in school and/or have graduated from high school or received a general education development (GED) certificate, or have honorably been discharged from the U.S. Armed Forces or Coast Guard;
- Have not committed any felony or “significant misdemeanor,” or committed three or more lesser misdemeanors; and
- Pose no predictable or foreseeable threat to U.S. national security or safety.
After receiving DACA protections, a person must apply regularly to maintain their special status. In particular, DACA designation and benefits expire every two years, so recipients must apply accordingly to continue protection. Just because someone qualified during a previous application year does not guarantee continuation of benefits. You can read more about the DACA application and renewal process here. Please note: the USCIS, via court mandate, is accepting DACA renewals applications but is not accepting applications for new DACA beneficiaries.
DACA’s Future is Uncertain
The current situation is precarious for DACA and its participants. While the initiative has proven to be economically beneficial, in September 2017 President Trump announced his intention to end the successful program. The administration referred to this as a “winding down” of DACA, and began refusing to process renewal applications for current beneficiaries. Unsurprisingly, many lawsuits were filed against the Trump administration. These have no doubt benefitted DACA beneficiaries, who can at least now continue applying for renewals. We discuss the results of two lawsuits below.
Recent Court Rulings
Two recent court rulings have restored protections and hope for Dreamers. First, in August 2018, a U.S. federal judge ruled that the Trump administration must “fully restore” the DACA program. Judge John Bates, in his ruling, stated that the administration had failed to adequately explain and/or justify its discontinuation of DACA. And the reasoning provided, according to Judge Bates, was both “arbitrary and capricious.” Judge Bates ruled against the Trump administration despite that fact that the executive branch does in fact hold the power to end a program like DACA. But, decisions cannot be arbitrary or seemingly prejudiced, which is why Bates ruled that DACA must be reinstated.
The August 2018 ruling provided a crucial victory for Dreamers and their families. Since January 2018, current DACA beneficiaries had been allowed to continue renewals (due to a judicial injunction), but this official ruling delivered tangible hope. Yet, Judge Bates did not require the Trump administration to reopen the program to new applicants.
November 2018 Ruling
In November 2018, a three-judge appeals court denied the Trump administration’s appeal of a previous ruling. The court resides in the Ninth U.S. Circuit Court, located in San Francisco, California. In support of its ruling, the court cited very similar reasons to those provided by Judge Bates in his August 2018 decision. Again, the court did not state that the Trump administration lacked the express authority to discontinue the DACA program. But, the court believed that the administration’s plans to dissemble DACA were based upon “erroneous” justifications. Further, the court wrote that the administration’s decision and legal premise were “arbitrary and capricious under settled law.”
In response, the Justice Department released a statement that it was “pleased” the ruling occurred, opening up an avenue to the Supreme Court. Continuing, a DOJ spokesperson stated that the department “will continue to vigorously defend its position on the matter, and looks forward to vindicating that position before the Supreme Court.”
Considering DACA’s Future
At the moment, the future of DACA and its Dreamers remains uncertain. The appeals court’s ruling makes it likely that the case will be heard by the Supreme Court. This means that DACA’s fate will likely rest upon the shoulders of America’s highest court.
Contact an Expert Miami Immigration Attorney
In conclusion, if you or a loved one is a DACA beneficiary, you should work closely with an experienced and knowledgeable immigration lawyer. The situation for Dreamers is precarious – no one can be quite sure what the final outcome will be. The best way to defend yourself from the unknown is to have a plan – adequate legal counsel will prepare you for many possibilities. Remember, always ensure that you work only with lawyers registered with your state’s bar association.
The lawyers at Davis & Associates passionately serve clients throughout Miami. We can help you with any immigration concern – call us to schedule a free initial consultation today. During your consultation, you can discuss your concerns with one of our expert attorneys. No matter your immigration circumstances, know that you’re not alone – we’re here to help you.