Trump Administration Forecast: What to expect if DACA is undone

Recent U.S. immigration policy hasn’t created many winners, but one group that qualifies to some extent are the thousands of children brought into the United States illegally by their parents, often referred to as DREAMers. Unfortunately, they may quickly become losers if President-Elect Trump decides to undo DACA -- the Deferred Action for Childhood Arrivals program.

DACA was launched by the U.S. Department of Homeland security in a June 15, 2012 policy memorandum and since then, over 700,000 DACA applications have been approved. The program provides qualifying DREAMers with a temporary form of relief from deportation called deferred action, and employment authorization. Both must be renewed every two years.

To qualify, applicants must provide proof of the following:

• They were under age 31 on June 15, 2012
• They arrived in the U.S. before age 16
• Have continuously resided in the U.S. since June 15, 2007
• Were physically present in the U.S. on June 15, 2012 and the application date
• They entered illegally before June 15, 2012 or their prior lawful status expired by that date
• They are enrolled in school, or have a high school diploma (including a GED certificate), or are have been honorably discharged from the U.S. armed forces
• Have no convictions for a felony, a significant misdemeanor, or three or more other misdemeanors and do not otherwise pose a threat to national security or public safety.

Mr. Trump has stated in his policy statements on immigration he intends to terminate two of President Obama’s executive actions closely related to the existing DACA program -- expanded DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. Expanded DACA modifies the original DACA program by eliminating the age ceiling and extending eligibility to individuals who lived in the U.S. by January 1, 2010, and by increasing employment authorization from two years to three. DAPA would provide temporary relief from deportation and eligibility for work authorization to undocumented parents of U.S. citizens or lawful permanent residents. Both programs have been on hold since a district court in Texas issued a preliminary injunction in a case brought by Texas and 25 other states to block their implementation.

It’s not clear whether Mr. Trump’s stated policy means he will target the existing DACA program with expanded DACA and DAPA. There are good reasons not to. First, the existing program isn’t based on an executive action by President Obama. Second, the program is already providing benefits which would have to be rescinded. Third, the federal court case brought to block expanded DACA and DAPA did not challenge the original DACA program. Fourth, U.S. employers would feel the impact of hundreds of thousands of authorized workers would be lost from one day to the next.

But the biggest reason is the huge blow that DACA’s elimination would be to the DREAMers and their families. Their employment authorization would cease, and they would once again face the immediate threat of deportation.

Like expanded DACA and DAPA, it would be easy for Mr. Trump to eliminate the existing DACA program with the stroke of a pen, creating a whole new class of losers. What if he leaves it intact? It would most likely be a split decision, but some might see him as a winner if he does.

Alan Seagrave
202.454.2832
seagrave@butzel.com