The Fragility of DACA: Roadblocks for Dreamers Under U.S. Immigration Law

Introduction

The Deferred Action for Childhood Arrivals (DACA) emerged as a hope for thousands of young immigrants who had grown up in the U.S. but lived in the shadows of legal ambiguity. These individuals consider the U.S. as their home despite lacking lawful immigration status. DACA offered protection from deportation and offered the authorization to work. These allow recipients to pursue education, careers, and stability. Since its inception, DACA has been inherently fragile, as it is not a law passed by Congress or a permanent policy.[1]

Based on the indicated issues, this paper examines DACA’s creation and legal vulnerabilities, the implications of DHS v. Regents of the University of California, INA provisions §245(a)[2]; §212(a)(9)(B)[3], and §212(d)(5)[4] that obstruct Dreamers’ paths to legal status, and the uncertain future of DACA under shifting political leadership. Finally, it also evaluates proposed legislative solutions to highlight the urgent need for long-lasting protections for Dreamers.

?I. The Creation and History of DACA

DACA[5] was established on June 15, 2012, through a memorandum issued by then-Secretary of Homeland Security Janet Napolitano during the Obama administration. It was created to address the precarious status of undocumented immigrants brought to the U.S. as children- often referred to as “Dreamers”-following repeated failures by Congress to pass the Development, Relief, and Education for Alien Minors (DREAM) Act, which was introduced in 2001.[6] This legislative passivity left many young immigrants who had grown up in the U.S. and integrated into American society without legal protections. Recognizing the increasing uncertainty faced by these individuals, the Obama Administration used executive authority to implement a temporary policy aimed at postponing deportation for a specific group of undocumented immigrants.[7] While DACA provided significant relief, it did not grant lawful immigration status or a pathway to citizenship. Based on the data, approximately 700,000 individuals benefited from the program by 2021.[8] However, DACA’s temporary nature left it open to legal challenges and policy changes under different presidential administrations.[9]

?II. The Legal Fragility of DACA

A.???? Reliance on Executive Discretion

DACA’s reliance on executive discretion is one of its greatest weaknesses. As an administrative policy, which was implemented through a memorandum by the Department of Homeland Security (DHS), DACA lacks the permanence and protections of legislation enacted by Congress. Unlike statutory programs, DACA can be altered or rescinded at the discretion of any sitting president, which makes it highly vulnerable to shifts in political priorities.[10]

This reliance on executive authority has created instability for DACA recipients, who must live with the fair and uncertainty of whether the program will continue under future administrations.? Leadership changes can result in significant policy reversals, as seen during the Trump administration. While the Obama administration framed DACA as a temporary but necessary solution, critics have pointed to its lack of statutory authority as a fundamental flaw, arguing that such programs should be subject to congressional approval.[11]

B.???? DHS v. Regents of the University of California

DACA’s vulnerability to political changes was highlighted in the landmark case DHS v. Regents of the University of California.[12] In 2017, then-Attorney General Jeff Sessions announced that the Trump administration would terminate DACA, arguing that the program was unlawful because it had not been authorized by Congress.[13] This decision triggered lawsuits from DACA recipients, advocacy organizations, and state governments, all of whom argued that the rescission violated the Administrative Procedure Act (APA), a federal law requiring agencies to provide a reasoned explanation for their actions.[14]

In 2020, the Supreme Court ruled in a 5-4 decision that the Trump administration’s attempt to terminate DACA was “arbitrary and capricious” and violated the APA.[15] Chief Justice John Roberts, writing for the majority, emphasized that DHS had failed to adequately consider the consequences of ending the program, including the impact on the hundreds of thousands of recipients who relied on its protections.[16] The Court did not, however, rule on the legality of DACA itself, leaving open the possibility that the program could be terminated in the future if proper procedural steps were followed.[17] The decision in Regents provided temporary relief for DACA recipients but underscored the program’s inherent fragility.[18] The ruling highlighted the precarious nature of relying on executive discretion rather than legislative authority, as DACA’s fate remains subject to the political priorities of future administrations.[19] The case also underscored the broader issue of judicial deference to agency decisions, with the Court signaling that a well-reasoned justification could pave the way for DACA’s termination.[20]

?III. Vulnerabilities Under the INA

The INA contains several provisions that create significant barriers for DACA recipients seeking to transition from temporary protection to LPR status. Despite being integral members of their communities, Dreamers are unable to navigate these legal barriers, which leaves them in a permanent state of uncertainty. Three key provisions - §245(a)[21]; §212(a)(9)(B)[22], and §212(d)(5)[23]- present the most significant challenges.

Section 245 (a) of the INA establishes that individuals seeking to adjust their status to LPR must have been “inspected and admitted or paroled” into the U.S.[24] This requirement creates a major roadblock for many DACA recipients, as a significant number of them entered the U.S. without inspection.[25] Even if they meet other eligibility criteria, such as having a U.S. citizen spouse or an employer willing to sponsor them, their inability to satisfy the lawful entry requirement renders them ineligible for adjustment of status.[26] This provision makes it impossible for DACA recipients to live and maintain the legal status in the U.S.

Moreover, section 212(a)(9)(B) further complicates the situation by imposing three-and ten-year reentry bars on individuals who leave the U.S. after accruing unlawful presence.[27] These bars apply to anyone unlawfully present in the U.S. for over 180 days and departs voluntarily. Those with unlawful presence of more than 180 days but less than one year face a three-year bar, while those with unlawful presence exceeding one year face a ten-year bar. For DACA recipients, these reentry bars are particularly punitive. Since many have lived in the U.S. Without legal status for years, departing to fulfill the requirements for adjustment of status would trigger these bars. This effectively locks them out of the country for a significant period.[28] This creates a paradoxical situation in which DACA recipients are encouraged to pursue lawful status but face severe penalties for attempting to comply with the law.[29] Moreover, the reentry bars disproportionately impact individuals who were brought to the U.S. as minors because they had no control over their initial entry or subsequent unlawful presence. These provisions illustrate the INA’s failure to address the needs of long-term undocumented residents who were raised and educated in the U.S.[30]

Advance Parole under §212(d)(5) offers DACA recipients a potential way to meet the “lawful entry” requirement under § 245 (a). It allows individuals to apply for permission to travel abroad and return lawfully for specific purposes, such as education, employment, or humanitarian reasons.[31] Upon reentry, recipients can adjust their status if they meet other eligibility criteria. However, advanced Parole is not a guaranteed solution. Its availability depends on administrative policies, which have shifted across administrations.? For example, the trump administration suspended Advance Parole for DACA recipients, significantly restricting their ability to use this provision, while the Biden administration later reinstated it.[32] This inconsistency underscores its vulnerability to political shifts.? Additionally, traveling under advance Parole carries risks, such as potential denial of reentry or processing delays, making it an uncertain and temporary workaround for DACA recipients seeking permanent solutions.[33]

?IV. Proposed Legislative Solutions

If the government aims to address the challenges faced by DACA recipients, there are clear legislative solutions that could resolve many of the program’s underlying issues. The DREAM Act, for example, provides a well-defined pathway to citizenship for undocumented individuals brought to the U.S. as children. By addressing key challenges such as the lack of lawful status and the barriers posed by the INA, this proposal has the potential to secure permanent protections for Dreamers.[34]

Another viable solution is the American Dream and Promise Act, which expands protections not only for DACA recipients but also for individuals with Temporary Protected Status (TPS) and Deferred Enforced Departure (DED).[35]This Act offers a pathway to citizenship while tackling some structural barriers in the INA, such as reentry bars.[36]

Comprehensive immigration reform is necessary to fully resolve the systemic challenges faced by DACA recipients and other undocumented immigrants. Such reform could eliminate reentry bars, adjust the lawful entry requirement, and create a clear and permanent pathway to legal status. By addressing these structural issues, comprehensive reform would provide long-term solutions rather than temporary fixes. These measures are feasible and would humanize the immigration process, ensuring stability for Dreamers who have grown up in and contributed to U.S. society.?

However, with the Trump administration’s return to power, it is uncertain whether these solutions will be pursued. During his previous administration, Trump attempted to terminate the program, an effort blocked by the Supreme Court. However, the court left open the possibility of ending DACA if proper procedures were followed, and a Trump-led administration is likely to pursue this path. A new Trump administration could take steps to fully dismantle DACA by issuing a well-reasoned termination. Policies such as restricting Advance Parole, ramping up deportation enforcement, or blocking work authorization renewals for recipients could destabilize the program further. These actions would expose DACA recipients to deportation and financial hardship, reversing years of progress for Dreamers who have built their lives in the U.S. The program’s precarious future underscores the urgent need for Congress to act and provide permanent protections, as relying on executive action leaves hundreds of thousands of Dreamers in constant uncertainty.

Conclusion

DACA was created to address the challenges faced by undocumented youth, but its reliance on executive discretion has made it legally fragile. Provisions of the INA, which we have discussed, create significant barriers, preventing recipients from achieving lawful status. The program’s uncertain future, particularly under the trump administration, highlights the urgency of legislative action. Proposals like the DREAM Act and the American Dream and Promise Act offer pathways to stability, but political gridlock continues to impede progress. To protect Dreamers and provide them with lasting security, Congress must enact comprehensive immigration reform.

[1] Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).

[2] 8 U.S.C.A. § 1255 (a) (West) Current through P.L. 118-107.

[3] 8 U.S.C.A. § 1182 (a) (9) (B) (West) Current through P.L. 118-107.

[4] 8 U.S.C.A. § 1182 (d) (5) (West) Current through P.L. 118-107.

[5] To qualify for DACA, applicants had to meet specific criteria: 1. Entry into the U.S. before their 16th birthday; 2. Continuous residence in the U.S. since June 15, 2007; 3. Being under the age of 31 as of June 15, 2012; 4. Enrollment in school, graduation, a GED, or honorable discharge from the military; 5. Absence of serious criminal convictions.

[6] Development, Relief, and Education for Alien Minors (DREAM) Act, S. 1291, 107th Cong. (2001).

[7] Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).

[8] U.S. Citizenship & Immigr. Servs., Approx. 700?000 DACA Recipients as of 2021 (2021), https://www.uscis.gov.

[9] American Immigration Council, The Dream Act, DACA, and Other Policies Designed to Protect Dreamers (Oct. 2020).

[10] T. Alexander Aleinikoff et al.,?Immigration and Citizenship: Process and Policy?709–11 (9th ed. 2021).

[11] Id.

[12] Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020).

[13] Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 1906 – 1908 (2020).

[14] Id at 1909 – 1915.

[15] Id.

[16] Id at 1908.

[17] Id at 1913.

[18] Id at 1915.

[19] Id.

[20] Id at 1916.

[21] 8 U.S.C.A. § 1255 (a) (West) Current through P.L. 118-107.

[22] 8 U.S.C.A. § 1182 (a) (9) (B) (West) Current through P.L. 118-107.

[23] 8 U.S.C.A. § 1182 (d) (5) (West) Current through P.L. 118-107.

[24] 8 U.S.C.A. § 1255 (a) (West) Current through P.L. 118-107.

[25] Id.

[26] For instance, a DACA recipient who is married to a U.S. citizen and qualifies for family-based sponsorship cannot apply for a green card unless they leave the U.S. to be processed abroad. However, doing so often triggers additional penalties, such as reentry bars under §212(a)(9)(B), creating a legal paradox. The lawful entry requirement highlights the INA’s rigid structure, which fails to account for the unique circumstances of individuals who were brought to the U.S. as children without agency over their immigration status.

[27] 8 U.S.C.A. § 1182 (a) (9) (B) (West) Current through P.L. 118-107.

[28] Id.

[29] T. Alexander Aleinikoff et al.,?Immigration and Citizenship: Process and Policy?715–19 (9th ed. 2021).

[30] 8 U.S.C.A. § 1182 (a) (9) (B) (West) Current through P.L. 118-107.

[31] Id.

[32] 8 U.S.C.A. § 1182 (d) (5) (West) Current through P.L. 118-107.3.

[33] Id.

[34] The DREAM Act has repeatedly failed to pass Congress due to political opposition and concerns about incentivizing future unauthorized migration.

[35] American Dream and Promise Act of 2021, H.R. 6, 117th Cong. (2021).

[36] While it is more comprehensive than the DREAM Act, critics argue that it still does not address the broader inequities in the U.S. immigration system. Nonetheless, it represents a practical step toward ensuring stability for Dreamers.