Melanie Gurley KeeneyOn September 5, 2017, President Trump’s Administration announced rescission of the Deferred Action for Childhood Arrivals (DACA) program implemented in 2012 by President Obama. Through the DACA program, certain young people who entered the United States before the age of 16 were granted temporary reprieve from deportation (known as deferred action) as well as work authorization and the possibility of advance parole (which if granted allows them to return to the United States after traveling abroad). Since 2012, almost 800,000 individuals have been granted DACA.
With President Trump’s announcement, the U.S. Department of Homeland Security (DHS) issued a memorandum and Frequently Asked Questions explaining how the DACA program will be eliminated. According to that guidance, the Department will continue to adjudicate initial DACA applications and renewal applications (and any associated applications for employment authorization) that were filed and accepted by the Department as of September 5, 2017. However, initial DACA applications filed after September 5, 2017 will be rejected. Thus, individuals who do not currently hold deferred action pursuant to the DACA program can no longer apply for DACA benefits.
For individuals who have been granted deferred action and employment authorization pursuant to the DACA program, the Department will not terminate these benefits in advance of their stated expiration dates as part of the elimination of the program. Thus, individuals with an employment authorization document (EAD) obtained through the DACA program may continue to work until the EAD expires or is affirmatively revoked by DHS. Current DACA beneficiaries should, however, pay close attention to the expiration dates of these benefits. If your DACA approval or associated EAD expires between September 5, 2017 and March 5, 2018, the Department will accept and adjudicate an application to renew those benefits until October 5, 2017. Accordingly, individuals with DACA benefits that expire on or before March 5, 2018 are eligible for one more extension of deferred action and employment authorization, but must file the renewal application before October 5, 2017.
With regard to advance parole granted to DACA beneficiaries, the Department will generally continue to honor the advance parole up to the current expiration date, subject to the authority of U.S. Customs and Border Protection to determine an individual’s admissibility and eligibility for parole at the border. However, as of September 5, 2017, the Department will no longer adjudicate any applications for advance parole filed by DACA beneficiaries. Thus, once any current advance parole documents expire, DACA beneficiaries will no longer be able to travel abroad, as doing so without a valid advance parole document would make the individual inadmissible to the United States for 10 years. Any applications for advance parole filed by DACA beneficiaries that are currently pending will be administratively closed, and the associated filing fees will be refunded.
After a DACA beneficiary’s deferred action expires, that individual is no longer lawfully present and therefore, could be subject to removal proceedings. In its FAQs, the Department stated that “[i]information provided “¦ in DACA requests will not be proactively provided “¦ for the purpose of immigration enforcement proceedings,” unless the individual meets certain enforcement criteria (e.g., they have engaged in criminal behavior). Though the FAQs provide some reassurance that information obtained through the DACA program will not be “proactively” shared, it is unclear whether this information could be shared if affirmatively requested by Immigration and Customs and Enforcement, the agency responsible for removal proceedings. In addition, there have been reports that the Department is reviewing its enforcement criteria and could revise that criteria at any time. Thus, though former DACA beneficiaries or individuals who are out-of-status are generally not considered enforcement priorities under current guidance (absent criminal or other behavior), that guidance could change in the future.