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Advocacy and Action

DACA Decision Leaves Students Vulnerable

On Sept. 5, 2017, the Trump administration rescinded the Deferred Action for Childhood Arrivals (DACA) policy, which was established in June 2012 by then-President Barack Obama. The policy allowed undocumented immigrants who were brought to the U.S. under the age of 16 to become eligible for Social Security cards, drivers’ licenses, work permits, and, most notably, renewable two-year periods of deferred deportation action.

Under the DACA program, undocumented immigrant children were allowed to legally attend K–12 schools and postsecondary institutions. At the time of the Trump administration’s termination of the program, 45 percent of DACA recipients were enrolled in either a secondary school or higher education institution.

While DACA status allowed many individuals to legally pursue postsecondary education, it did not create a pathway to citizenship; therefore, DACA recipients were ineligible for federal financial aid to pay tuition and other related expenses. Individual states also had sole discretion in deciding whether DACA recipients, living in-state, would be offered in-state tuition rates at public institutions.

DACA Termination Timeline

Based on the Trump administration’s memorandum rescinding DACA, its termination will take place primarily over the course of a six-month period, beginning in September 2017, when the announcement was made, and ending on March 5, 2018. A total phaseout of the program is expected to take two years.

Colleges and universities should anticipate the following changes to DACA, which are already underway.

1) New DACA applications. Once DACA was rescinded, President Trump announced that the Department of Homeland Security (DHS) will not review any new DACA applications received after Sept. 5, 2017. Applications that were pending prior to this date will be adjudicated by DHS on a case-by-case basis.

2) Eligible for a DACA extension. DACA recipients whose status was set to expire between Sept. 5, 2017, and March 5, 2018, were given one month from the announcement date—until Oct. 5, 2017—to apply for one additional two-year deferred deportation action renewal.

3) Ineligible for a DACA extension. DACA recipients whose status is set to expire on or after March 5, 2018, will not be permitted any additional renewals. Due to DACA’s two-year renewal cycle, the last remaining individuals with official DACA status should reach their status expiration date during the 2020 calendar year.

For example, if there are DACA recipient students on your campus whose status is set to expire on March 5, 2018, or anytime thereafter, they will be considered out-of-status for deportation purposes as soon as they reach the expiration date of their current status.

Litigation Over DACA

The elimination of DACA has given way to a number of lawsuits challenging its rescission. Depending on court rulings in these cases, DACA may be revived judicially. While the suits vary slightly from case to case, most argue that the manner in which the government eliminated the program violates the due process and equal protection clauses of the Fifth Amendment of the U.S. Constitution.

While the lawsuits are primarily being brought by Democrat states attorneys general and civil rights advocacy groups, both Princeton University (in conjunction with Microsoft) and the University of California (UC) System (under the leadership of one of DACA’s original creators—Janet Napolitano) have also filed suit against DHS.

UC President Napolitano remarked in a statement that, “Neither I, nor the University of California, take the step of suing the federal government lightly, especially not the very agency that I led. It is imperative, however, that we stand up for these vital members of the UC community. They represent the best of who we are—hard working, resilient, and motivated high achievers. To arbitrarily and capriciously end the DACA program, which benefits our country, as a whole, is not only unlawful, it is contrary to our national values, and bad policy.”

Congressional Action on DACA

While there is potential for judicial action to save the DACA program, Congress could also choose to enact legislation to protect DACA recipients. The DREAM Act—one of the most frequently cited pieces of legislation throughout this process—has been re-introduced several times during different sessions of Congress; most recently, in July, it was referred to as the “Dream Act of 2017.” The term “Dreamers,” often used interchangeably to describe DACA recipients, came from the original legislation, which was first introduced 16 years ago. This bipartisan legislation would offer undocumented immigrants brought to the United States as children, who meet stringent criteria similar to that of DACA’s eligibility criteria, a pathway to permanent resident status.

While congressional action would likely be the most timely way DACA could be protected, its fate relies on Congress swiftly handling its ongoing efforts for comprehensive tax reform. With most members of Congress currently seeing tax reform as their primary priority, it is unlikely that they will turn to any major immigration actions before tax reform is completed.

Although both Congress and the White House have expressed a desire to finalize tax reform by the end of the year, that will leave only a few short months in 2018 before the March 5 deadline, when some DACA recipients will begin to lose their status.

NACUBO CONTACT Megan Schneider, assistant director of federal affairs, 202-861-2547

The elimination of DACA has given way to a number of lawsuits challenging its rescission. Depending on court rulings in these cases, DACA may be revived judicially.