Published September 6, 2017

 

In 2012 President Obama implemented an Executive Order known as Deferred Action for Childhood Arrivals (DACA) which led to the issuance of 2 year work permits and a shield against deportation for hundreds of thousands of undocumented young adults brought to the U.S. as children.    President Obama’s action was a direct response to Republican congressional leadership’s refusal to call a vote on a promising bipartisan immigration reform bill that would have put in place a path to legalization for most of our country’s undocumented population.    Now, following up on one of his campaign promises, President Trump has announced the winding down of DACA, at least for the short term.   According to Trump, his decision stems from a desire to see our nation’s legislative branch implement a remedy to address the gaping hole that DACA’s reversal will leave.

How are current DACA holders impacted?

Since DACA’s roll out in 2012, nearly 800,000 young adults have obtained and renewed 2 year Employment Authorization Documents (EAD).   With an EAD, the DACA holder is able to obtain a social security number and driver’s license, thus opening up a world of educational and employment opportunities that would otherwise never have been available.   Importantly, the validity of the EAD’s that have already been approved will not be impacted by the recent announcement, and moreover, Department of Homeland Security (DHS) will continue to accept DACA renewal requests through October 5, 2017.      The only significant immediate impact of Trump’s announcement is that DHS now will no longer accept DACA applications for first time applicants.

According to yesterday’s announcement, approved DACA holders will not necessarily be placed in removal proceedings, even after their current approvals expire, unless they have engaged in significant criminal activity.    Such a statement though will have little soothing effect for those DACA applicants who hesitantly came out of the shadows to avail of the life changing benefits DACA and an EAD presented to them.

Can a current, approved DACA holder apply for an extension?

Yes.    DACA holders are eligible to file for extensions of their current DACA status and EAD’s through October 5, 2017, with the approval of such an extension allowing for an additional 2 years of validity.  Notably, given that DACA/EAD extensions can be submitted no sooner than 150 days prior to expiration, it appears that DACA holders with expirations of March 6, 2018 and beyond will not be eligible to file an extension request.

Will Congress succeed in finding a legislative fix, and if not, will Trump reinstitute DACA?

Although Trump has spoken with compassion for DACA applicants in the past, the termination of DACA is favored by a significant portion, if not majority, of Trump’s voter base.  Leaving it to Congress to enact legislation to fix the hole left by this week’s announcement is a bit unrealistic given that it was precisely because of Republican Congressional leadership’s failure to act in 2012 that prompted Obama to issue the DACA Executive Order in the first place. 

    

As to Trump reinstituting DACA if Congress fails, I am not holding my breath.  However, given the difficulty in determining exactly where President Trump stands on so many issues, including immigration, anything is possible.

 

PUBLISHED September 6, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois