On Monday, Obama urged Trump and the incoming administration “to think long and hard before they are endangering that status of what for all practical purposes are American kids.”
What Could Happen to Those Who Have DACA?
Those who qualified for DACA had to prove they were under the age of 31 as of June 15, 2012, came to the United States before age 16, lived here for at least five years continuously, attend or graduated from high school or college and have no criminal convictions.
Roughly 750,000 people were issued temporary protected status and, separately, work authorization.
“Everybody is in a state of shock. We don’t know what is going to happen. We don’t know if his extremist nasty rhetoric will go into policy,” David Leopold, an immigration lawyer, told ABC News. “I have corporate clients asking questions they never asked before. Every client is asking how Trump’s election changes things ... someone in lawful status, green card holders, people going through legal system or people who are undocumented and have DACA ... ‘What do I do now?’ ... ‘Am I going to get deported?’”
If the Trump administration decides to end DACA, it would be at the discretion of DHS secretary to determine priorities and whether protected status is removed together with work permits.
Could DACA Recipients Be Deported Under Trump?
Immigration and Customs Enforcement (ICE) is also under the DHS and is responsible for enforcing the country’s immigration laws. There are no laws or protections that would block USCIS from handing over all its information to ICE, which it could use to deport people.
"There is currently a memorandum that says that information will only be used in limited circumstances, such as going after criminals, and that memorandum could very well be revised by a new administration. So people are very insecure," Toni Maschler, a D.C.-based immigration attorney, told ABC News. "So long as that policy memorandum continues to exist, there is something that says it shouldn’t be used that way."
In 2011 the administration changed its notice-to-appear policy so people who applied for immigration benefits and were denied were not automatically placed in removal proceedings. Previously, if people applied for immigration benefits through USCIS and were denied those benefits, their cases were automatically transferred to ICE and they were issued a notice to appear in immigration court to begin formal removal proceedings. In order to keep ICE removals in line with priority cases such as criminals and recent arrivals, the process was changed, with deportation procedures initiated only for individuals who met those criteria. USCIS may turn information over to ICE at its discretion.
"Unfortunately, I don’t think there is any kind of estoppel that can be used to say, ‘OK, because this information was given in good faith, it should not now be used in a retaliatory manner,’" Maschler said, adding that legal recourse would not be an option if that information is used to deport a DACA recipient. "They would still enjoy the opportunity to present any kind of defense before an immigration judge."
But Leopold disagreed.
“ICE was not supposed to be using that information for enforcement purposes in absence of criminal convictions, fraud or a threat to national security or public safety,” he said. “There is supposed to be a firewall, and I think that ICE should not be able to use that information. They could be buying themselves some serious litigation if they did.”
What About Work Authorizations?
It is unknown how the Trump administration will handle work authorizations issued under DACA.
“I believe that if DACA were terminated, the employment authorization documents would remain valid until the expiration dates on the cards,” Leopold said. “However, there is a regulation that provides that employment authorization may be terminated when the conditions under which it was granted change. So DACA would have to be terminated with explicit termination of employment authorization.”
So What Should DACA Recipients Do?
Immigration groups like the National Immigration Law Center recommend not applying for DACA status if you do not already have it. If you are a DACA recipient, the government has your information.
What steps to take depends largely on what the Trump administration does next.
“I can certainly see there being massive protests and massive pressure,” Maschler said. “And see things happen that would make it decided not to [end DACA] for pragmatic reasons ... I think risk versus benefits comes out. If someone already disclosed information and is just renewing, they might as well renew. Someone applying for the first time, it’s a tougher call.”