Congress is trying to agree on a bipartisan plan on what to do about DACA, after the Trump administration announced a “wind-down” of the program on Sept. 5, 2017. Lawmakers face a March 5 deadline set by the president to come up with a legislative fix. Senate Majority Leader Mitch McConnell said the Senate could start debate on immigration before Feb. 8.
How does the DACA program work? We’ll go through the facts.
What is DACA?
The Deferred Action on Childhood Arrivals program — or DACA — defers deportation proceedings for two years for qualified individuals who were brought to the United States illegally when they were children. The program also gives those who are approved work authorization, and the approvals can be renewed. DACA was created on June 15, 2012, by then-President Barack Obama.
Why did Obama create the program?
In his 2012 announcement, Obama spoke about the failure of Congress to pass the “DREAM Act,” which would have provided a path to citizenship for certain immigrants brought to the country illegally as children. He said that in the absence of congressional action, the Department of Homeland Security would institute a temporary program to defer deportation for “eligible individuals who do not present a risk to national security or public safety.”
He called it “a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”
What are the eligibility requirements for DACA recipients?
Applicants to DACA have to be:
- At least 15 years old when applying but under the age of 31 as of June 15, 2012
- Under the age 16 when entering the United States
- Living in the U.S. continuously since June 15, 2007
- Present in the U.S. on June 15, 2012, and at the time of applying
- In school or have graduated or completed high school, or have been honorably discharged from the military
- Not convicted of a felony, a significant misdemeanor or three or more other misdemeanors
DACA applicants also can’t “otherwise pose a threat to national security or public safety,” according to the U.S. Citizenship and Immigration Services. They couldn’t have lawful status on June 15, 2012, either.
The requirement that applicants be at least 15 years old when applying is waived for those who are in removal proceedings or had received a final removal or voluntary departure order. They can’t, however, be in immigration detention.
What’s the process for applying?
There’s a seven-page application that must be submitted along with documentation proving the applicant meets the eligibility requirements, and there’s also a form and a worksheet required for employment authorization. The total fee is $495. If the application is in order, USCIS will give applicants an appointment at a local Application Support Center to provide biometric data, including fingerprints, and USCIS will conduct background checks.
How many DACA recipients currently live in the U.S.?
As of Sept. 4, 2017, there were 689,800 DACA recipients, according to USCIS. The total number of people who have ever been approved for DACA since 2012 is 798,980. Nearly 72,000 initial applications were denied.
About 70,000 of the cumulative approvals either didn’t renew or were rejected when trying to renew. About 40,000 became lawful permanent residents.
There are more people who meet the DACA eligibility criteria. The Migration Policy Institute, a nonpartisan think tank, estimates that 1.3 million met the criteria and could have applied.
There are several legislative proposals in Congress to provide a path to legal status for those who came to the United States illegally as children that would apply to larger populations (see the last question on legislation for more information).
Does DACA give recipients legal status in the U.S.?
The DACA program doesn’t provide a path to citizenship, and even though recipients have deportation deferred, they still do not have lawful status. However, about 40,000 former DACA recipients did go on to get their green cards, becoming lawful permanent residents. How? A spokeswoman for USCIS, Claire K. Nicholson, confirmed to FactCheck.org that the 40,000 people used what’s called “advance parole,” under which DACA recipients could get permission (after applying and paying a $575 fee) to travel abroad for humanitarian, educational and employment purposes. Once they returned to the U.S., they were entering the country legally. Typically with unlawful status, an immigrant would have to return to his or her home country and apply for a green card there.
Those applying for green cards would have to be eligible under one of several categories, including family — such as marrying a U.S. citizen — and employment.
How old are they?
The average age of DACA recipients was 25 years old last year, according to a national surveyof 3,063 DACA holders in August 2017. The vast majority — 82.5 percent — were under 30.
The survey, from Tom K. Wong, an assistant professor of political science at the University of California, San Diego, found that when the DACA enrollees arrived in the United States they were 6-and-a-half years old on average, and 54 percent of them were under the age of 7.
Where do they live?
The largest concentrations of those with initial DACA approvals were in California (28 percent) and Texas (16 percent), according to USCIS. About 5 percent of initial DACA approvals came from New York; another 5 percent came from Illinois, and 4 percent came from Florida. But there have been DACA recipients from all 50 states, plus the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands.
Why did President Trump rescind the program, and when does it end?
Republican attorneys general and governors threatened legal action against the executive branch if the Trump administration didn’t rescind the 2012 DACA memorandum by Sept. 5, 2017. The Trump administration announced a “wind-down” of the program that day. The memo from the Department of Homeland Security said that Attorney General Jeff Sessions had determined that because DACA was set up through an executive action after Congress rejected legislation on the matter, it was “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of authority by the Executive Branch.”
The attorney general also determined that “potentially imminent litigation” against DACA would likely be successful. The Obama administration in November 2014 had expanded DACA eligibility and the period of deferred action to three years, and it created a program called Deferred Action for Parents of Americans and Lawful Permanent Residents, which would defer deportation proceedings for parents with children who were citizens or lawful permanent residents. Those actions were successfully challenged in court by 26 states. A split Supreme Court ruling in June 2016 affirmed an appeals court ruling that halted the 2014 executive action.
The Trump administration didn’t end the original 2012 DACA program immediately. Instead, it said that it would no longer accept new DACA applications, and renewals would only be processed for those whose DACA status expires by March 5. At that point, an average of 915 DACA authorizations would be terminated per day, until the final DACA authorizations expired in March 2020, according to estimates by the Migration Policy Institute. The administration also isn’t approving any new advance parole requests.
However, on Jan. 9, a federal judge in the U.S. District Court in San Francisco temporarily, and partially, blocked the Trump administration action, ruling that it had to continue processing DACA renewals while a legal challenge proceeds. It doesn’t have to accept new applications. USCIS announced it would abide by that ruling. The administration has appealed the District Court decision and said it would request a direct Supreme Court review.
Can the Trump administration deport DACA recipients, and have any been deported?
Under DACA, any deportation action is deferred. However, DACA status can be revoked. USCIS data show that there were 820 terminations in fiscal year 2017 due to convictions or arrests, and another 20 terminations related to gang membership or affiliation. USCIS notesthat “deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.”
One DACA recipient who was deported dropped his court case against the federal government, and another who was stripped of DACA status had that status reinstated. The ACLU has filed a class action lawsuit against the Trump administration, arguing it “has a practice of unlawfully and arbitrarily revoking DACA grants and work authorizations based on unproven allegations or low-level offenses such as traffic violations that do not disqualify the individual from the program.”
In an interview with CBS News, DHS Secretary Kirstjen Nielsen said that Immigration and Customs Enforcement wouldn’t prioritize the removal of DACA recipients. “If you are a DACA that’s compliant with your registration, meaning you haven’t committed a crime, you, in fact, are registered, you’re not [a] priority of enforcement for ICE should the program end,” Nielsen said in the Jan. 16 interview.
What are the legislative proposals in Congress regarding DACA?
Several bills have been proposed in Congress to create a path to legal status for DACA recipients and others who were brought to the United States illegally as children. The Migration Policy Institute estimates that under five proposals, there would be between 1.6 million and 3.6 million eligible for conditional legal status, and between 1.3 million and 3.6 million eligible to obtain lawful permanent residence status.
The high-end estimate, however, is for a Democratic bill, while the other proposals are either bipartisan or from Republicans. A bill proposed by Republican Sen. Lindsey Graham and Democratic Sen. Richard Durbin would enable an estimated 2.14 million to be eligible for conditional legal status and 1.73 million to qualify for lawful permanent residence status, MPI estimates. Those eligible would include those who entered the U.S. at age 17 or younger and who have been continuously present in the U.S. for four years before enactment of the bill.