DACA and DAPA: The Downsides

On February 16th of 2015, a federal district court in Texas issued a temporary injunction on expanded DACA and DAPA. Judge Andrew Hanen ruled that DHS did not comply with the Administrative Procedure Act in creating DACA and DAPA. DHS released a statement that they will appeal the temporary injunction. USCIS is complying with the injunction and is not receiving applications at this time.

DACA and DAPA have been criticized as amnesty or a blanket pardon for illegal aliens. However, DACA and DAPA are very limited. While DACA and DAPA provide a way for noncitizens to function in America without the fear of being deported, it is not a comprehensive solution for noncitizens, and any potential applicant should consider the risks of applying.

DACA and DAPA provide noncitizens lawful presence as a result of a decision to refrain from prosecuting them. DACA and DAPA applicants are eligible to receive employment authorization and a social security number, and in some states, access to state student loan programs and driver’s licenses. These initiatives do not provide noncitizens with lawful status, and the noncitizen must apply and renew their application every three years. DACA and DAPA recipients are not eligible to receive any federal benefits. DACA and DAPA recipients convicted of certain criminal offenses will still be eligible for deportation.

The potential risks of DACA and DAPA to noncitizens are great, because it is an administrative action that does not confer any rights to noncitizens. USCIS has been enforced DACA in a way that minimizes these risks. The biggest concern to noncitizens is coming onto the radar of Immigration and Customs Enforcement. DACA and DAPA recipients are inherently deportable, and most who receive DACA have been effectively living in the United States without receiving the attention of immigration officials. The decision is to either keep living in the shadows, with a constant risk of deportation, or to bring oneself to the attention of immigration officials in the hopes of being temporarily allowed to remain in the United States. The official policy of USCIS is to not share information about individual DACA applicants to ICE unless: the noncitizen has been convicted of certain criminal offenses, the application indicates fraud, or the applicant is a threat to public safety or national security. However, this policy, like the entire program of deferred action can be changed with a change in administration.Most importantly DACA and DAPA are temporary. They do not provide a path to citizenship for noncitizens. As soon as President Obama is out of office, the few protections offered by DACA and DAPA are no longer guaranteed. While it is unlikely that the next president would take such drastic measures, they could hypothetically order all recipients to be removed. Information given to USCIS for applications could be shared with Immigration and Customs Enforcement with an internal policy change, making thousands of recipients vulnerable.

One of the biggest risks with the temporary nature of DACA and DAPA is that it puts a short-term Band-Aid on the larger immigration problem. With estimates of 11 million undocumented immigrants in the United States, many politicians are advocating for comprehensive immigration reform. Programs like DACA and DAPA fix the imminent problem without fixing the larger problem by holding noncitizens in a legal status limbo.