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DACA: Next steps for institutions of higher education

Aaron Lacey September 13, 2017

In 2012, then-President Obama established with the Department of Homeland Security (“DHS”) the Deferred Action for Childhood Arrivals (“DACA”) Program. The DACA Program is an exercise of prosecutorial discretion by the federal executive branch, designed to afford undocumented persons who arrived in the United States as children a means by which to remain in the country. 

U.S. Citizenship and Immigration Services (“USCIS”), the division of DHS that manages DACA, reviews each DACA application on a case-by-case basis. If successful in applying, DACA recipients are not granted a lawful immigration status or put on the path to becoming a lawful immigrant. Rather, they are simply considered lawfully present in the United States for two years, and have the option to seek renewal in two-year increments. 

Subsequent to its implementation, DACA has allowed roughly 800,000 individuals to stay in the United States so long as certain criteria are met. As those in higher education are keenly aware, a significant percentage of these individuals (commonly referred to as “Dreamers”) are or soon will be of an age when many would pursue postsecondary education. Indeed, Dreamers are presently enrolled in colleges and universities across the United States.

The Trump Administration’s recent policy shift 

As has been widely reported, on September 5, 2017, the current administration announced that it will end the DACA Program in six months. DHS released a memorandum and a set of FAQs in conjunction with the President’s announcement explaining the process by which the Department will phase out the Program. During the six month phase-out period, existing DACA permits will not be terminated and USCIS will continue to review renewal requests for those whose benefits are due to expire before March 5, 2018. However, first-time DACA applications filed after President Trump’s announcement will not be considered. When an individual can no longer benefit from DACA deferred action, they will not be a USCIS deportation priority unless they meet general deportation priority conditions. 

Congress could choose to save the program by passing legislation making the DACA Program law, rather than mere executive branch policy. There are various pieces of legislation pending, and both Democrats and Republicans have shown interest in attempting to save some version of DACA. However, Democrats are likely to push for a standalone bill, while Republicans would be opposed to such a move without also addressing more comprehensive immigration reform. Because of this, the success of any such legislation is uncertain, to say the least. 

Legal challenges to the program’s phase-out also could come into play. On September 8, 2017, the California University System filed a suit against President Trump and his administration claiming that the rollback of the DACA Program violates the due process rights of those granted permits protecting them from deportation under DACA.

Practical considerations for postsecondary institutions

Because many students at institutions of higher education are DACA beneficiaries, it is important for schools to give deliberate thought to how they will work with this group. We offer the following shortlist of suggestions:

  • All schools should review and update their DACA-related policies and ensure that they are properly communicated to their individual campus communities. While doing so, it is important to understand that each school may have a different approach. Furthermore, state law may also be applicable and impact schools’ DACA policies. Government actors may also expect schools to have clear policies on the procedures that they will follow after the six-month period has ended. 
  • Schools should communicate to DACA beneficiaries that resources are available to them, whether those resources are internal or external (i.e., immigrant legal resource centers). Such resources might include legal support, pastoral care, mental-health counseling, or literature on DACA and financial assistance for DACA students. 
  • Be it questions on travel, the threat of apprehension or deportation, or alternative forms of relief, the risks and alternative strategies available to any individual DACA recipient must be evaluated on a case by case basis by their own experienced attorney. As with any vulnerable population, DACA recipients should be wary of scams and suspicious of any website, e-mail solicitation, or ‘expert’ extolling immediate results and making extraordinary promises.
  • There is little doubt that those students who are DACA beneficiaries are now at a higher risk of not being able to reenter the United States if they travel outside of the country. Previously, DACA beneficiaries were required to petition USCIS for “advance parole” if they wanted to leave the United States and reenter without their deferred action period being automatically terminated. Still, this advance parole did not guarantee reentry, and the immigration authority at the point of reentry had discretion to not admit DACA beneficiaries. With the current shift in policy, the risk of being turned away at the point of reentry is even greater. It is important that schools are consistent, and realistic, in the guidance they give to student and staff DACA beneficiaries on this point.
  • Institutions should recognize that attempting to actively identify students and staff members that are DACA beneficiaries could raise privacy concerns. Schools should consider limiting efforts generalized outreach and support, with the understanding that DACA beneficiaries seeking support will contact the institution. 

Aaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation, the firm’s higher education blog. You can find Aaron on Twitter (@HigherEdCounsel) and LinkedIn, and reach him at (314) 552-6405 or alacey@thompsoncoburn.com.