Donald Trump’s election as the 45th President of the United States introduces incredible uncertainty as to the DACA program. Trump campaigned on pledges to end DACA “on day one” and, because DACA is a creation of executive authority, he would have the authority to do so. Nobody knows at this early juncture, however, if he will stick to his campaign pledge and, if so, exactly how he would go about doing it. There are several possibilities: 1) he could order USCIS to stop accepting new applications and immediately revoke existing approvals; 2) he could order USCIS to stop accepting new applications and simply not allow recipients to renew existing approvals upon expiration; 3) he could wait to terminate DACA until he had secured some legislative fix that would similarly protect DACA holders. Interestingly enough, some anti-immigration organizations have proposed that he NOT immediately terminate DACA in order to possibly gain an anti-DACA court decision in the pending DACA lawsuit (knowing that the President could still terminate the program if the courts eventually found DACA to be constitutionally valid).
Trump’s inauguration being January 20, 2017, that leaves approximately two months before Trump can make any changes to DACA. The questions the DACA community are currently facing are as follows: 1) should existing DACA holders spend the money to submit renewal applications prior to 1/20/2017?; 2) should first-time applicants risk the money AND providing personal information to USCIS that would enable easy apprehension if/when enforcement priorities change prior to 1/20/2017?; 3) should DACA holders continue to submit advance parole applications to USCIS knowing that approval and re-entry prior to 1/20/2017 is not likely? Unfortunately, unless and until the Trump organization announces it clear intentions regarding DACA, no one yet knows the answer to these questions.
For existing DACA holders, renewal is essentially just a financial risk decision and one that I think is perfectly reasonable: for a relatively minor fee, the possibility of two more years of employment authorization is probably worth the investment–at least until we hear information indicating otherwise. The government already has the fingerprints and addresses and oftentimes the cell phone numbers and emails of existing DACA holders. For new applicants, however, the decision is much more difficult. Presumably the government does not already have information that would enable ICE to quickly identify and locate a new applicant. Should a new applicant provide this information to the government knowing that a Trump administration that has promised a “humane deportation force” could use this information against them at the risk of potentially missing out on two years of protection? There is currently no guidance; the individual must make this decision in the absence of information. Regarding advance parole, again we have no answers. Since only approved DACA holders can apply for advance parole, however, I think there is a reasonable argument that applications should be submitted as long as USCIS will accept them–so long as the applicant clearly understands the potential risks and benefits before applying and again before leaving the U.S.
The days of DACA are almost certainly numbered. What happens next and what to do in the meantime are the most immediate questions resulting from Trump’s election–questions that need to be raised with your immigration lawyer as we enter a new era in U.S. immigration policy.
