Weighing the Risks and Benefits of a DACA Application

Deferred Action for Childhood Arrivals (DACA) currently provides protection against deportation and the benefit of employment authorization for certain individuals who entered the US as children. However, there are risks in filing, either as a renewal or initial application, since DACA’s status is uncertain.  There are pending lawsuits challenging the Trump Administration’s announcement that it would cancel DACA in February 2019, which could subject DACA applicants to removal (deportation).

In order to qualify for DACA, individuals must show that they were under the age of 31 as of June 15, 2012; entered the US while under the age of 16; continuously lived in the US from June 15, 2007, until the date of filing the application; were present in the US as of June 15, 2012; at the time of filing had graduated from high school or obtained a GED or were an honorably discharged veteran of the US Coast Guard or military; and have not been convicted of a felony, significant misdemeanor or three or more misdemeanors and are not a threat to national security or public safety.

Upon the Trump administration’s announcement in September 2017 that it would rescind the DACA program for most renewals and all initial filings, a host of parties filed lawsuits. Two federal courts have ruled that DHS must continue to accept renewal applications and one federal court held that the administration must also process initial filings.  The Trump Administration is appealing these decisions.  Also, Texas and seven other states have filed a lawsuit arguing that DACA is unconstitutional and that the program be terminated.  If there is enough disagreement among the Circuit courts, then the issue can land before the US Supreme Court.

Although DHS currently provides protection from deportation, the application also requires the disclosure of personal information, crimes and immigration status violations, which could be used to target applicants if the program were rescinded. This is less of a risk for those renewing DACA status, since DHS would already have their personal information.

While there have always been risks inherent in applying for DACA since the commencement of the program, it is more challenging to evaluate the risks in applying for DACA due to the executive orders and memoranda issued by the Trump Administration to eliminate enforcement priorities (increasing the chance of DACA recipients being placed in removal proceedings), the Administration’s decision to revoke DACA and the ongoing litigation challenging the rescission of DACA.

It is critical that the DACA applicant evaluate all forms of relief from removal should the program be revoked. These can include adjustment of status based on marriage, cancellation of removal and asylum.