Deferred Action For Childhood Arrivals (DACA) Program Under The Trump Administration

Tuesday, November 15, 2016 - 4:45pm

We want to share what we know about DACA under a Trump Administration with our clients to keep both DACA persons, their employers and families up to date.  Understandably, all are nervous and worried about whether they can continue to work, go to school or stay in America.  What is important to know is that all of you have our firm, and many other lawyers and immigrant advocacy groups working tirelessly on your behalf.  The DACA Dreamers are also working to stem the tide.  So no one is alone in this situation. 

How Might Trump End The DACA Program?

During his campaign and as part of his platform, President-elect Trump promised to end the DACA program, which was established on June 15, 2012 by President Obama.  Statements on Trump’s website promised to immediately end the amnesties after his inauguration.  However, it is still unclear when and whether that will happen.  There are a variety of possibilities.  United States Citizenship and Immigration Services (USCIS) may stop accepting or approving all pending DACA application.  It may take more measured steps, for example, refusal to accept new applications, or halt accepting or approving renewal applications.  USCIS may take the more drastic step of revoking DACA for all individuals who currently have it.   If the new Administration so orders, employment authorization for current recipients will be revoked. 

Will Trump Actually End The DACA Program?

During the past several years, the majority of Americans have indicated support for a legalization plan for undocumented persons, which includes a plan for lawful permanent resident status.  Moreover, President-elect Trump stated on the November 13, 2016 broadcast of “60 Minutes” that his administration will focus on securing the border and the deportation of individuals with criminal histories first.  Only after the border has been secured, will his administration address the remaining population of hard-working undocumented individuals.  For these reasons, is difficult to determine when or if President-elect Trump will eliminate DACA.  USCIS has approved approximately 750,000 DACA applications and more than 525,000 renewals since it began accepting applications in 2012.   The review of this immigration benefit presents an opportunity for the Trump Administration to strike a balance between its campaign promises to enforce U.S. immigration laws against violent criminals while developing a system that allows undocumented individuals who are productive members of their communities to normalize their immigration statuses.  

Should I file my DACA Application now?

Given the uncertainty surrounding the situation with DACA, many question whether eligible young people should file for an initial DACA grant or renew their current DACA benefits.  Any decision will depend on the particular facts of each case and should only be made after careful consideration and consultation with an immigration attorney

Risks Associated With Applying For DACA

DACA recipients are also concerned about potential enforcement actions against them if the program is terminated.  Because DACA was created by executive action, there are no laws or regulations which prevent the Department of Homeland Security from using the information in DACA applications for law enforcement purposes.  Under current USCIS guidance,  information provided in a DACA application can be shared with Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for immigration purposes only if the applicant meets the criteria for the issuance of a Notice to Appear. However, it can be shared with other law enforcement agencies, including ICE and CBP, for purposes other than deportation.   A Notice to Appear is the charging document issued by USCIS, ICE or CBP to persons who are subject to deportation under the Immigration and Nationality Act (INA) and is the key document which starts the deportation process.

USCIS has information pertaining to individuals who have already been granted DACA.  Thus, they are already known to the government.  Therefore, individuals seeking to renew their DACA benefits are not at any greater risk if they apply for an extension.  However, submission of a new application at this time will put the government on notice of an individual’s undocumented presence in the United States. Again, we recommend that anyone considering renewal of DACA benefits or a new application seek a consultation with an immigration attorney before taking the decision.

Conclusion: 

Many attorneys and organizations are advising DACA eligible individuals against filing a new application at this time.  However, individuals may consider filing for renewal.  Before taking any decision, eligible applicants should consult with an attorney to review his or her personal circumstances, including to determine whether other options may be available, before making any decision.