DACA to Come Back in Early 2021, Per Biden Pledge

November 7, 2020 As part of Joe Biden's presidential campaign, he published a plan for immigration that covers numerous topics, DACA among them.

** LEGAL UPDATE **

For the four years following Donald Trump's election to the White House, the approximately 800,000 people living in the U.S. with DACA (Deferred Action for Childhood Arrivals), as well as many more who were hoping to apply for DACA, have been in a state of uncertainty.

Trump Administration's Efforts to Undermine DACA

The Trump Administration announced early on that it would end DACA. This was followed by lawsuits and a Supreme Court order to reopen the program, but the administration refused to accept new DACA applications for most of its tenure nonetheless, and dragged its feet on renewals.

More unsettling for DACA holders has been that approval for DACA is not a secure immigration status. (Technically speaking, it's not a "status" at all.) Approval simply means that, for a designated time, U.S. immigration authorities are choosing not to deport the person. Once DACA is over, deportation efforts can theoretically begin.

The Obama Administration had hoped Congress would create a path to a green card and citizenship for DACA holders before that became a problem. But not only did Congress fail to act, the Trump Administration's enforcement arm (Immigration and Customs Enforcement, or ICE) generally set aside all previous priorities, telling agents to deport anyone they came across regardless of the person's close ties to the U.S. or whether resources might better be spent on undocumented persons who present actual threat to U.S. society. DACA holders legitimately feared that they'd be deported as soon as the program ended or they lost their own DACA status.

Biden Administration's Plans to Restore DACA

As part of Joe Biden's campaign, the now-President-Elect published a plan for immigration that covers numerous topics, DACA among them.

Because DACA was created by Executive Order (Obama’s) and nearly undone by Executive Order (Trump's), it can be reinstated by a Biden Executive Order pretty much as soon as he takes office, which is scheduled for January 20, 2021.

At a minimum, that should mean that the DACA program returns to what it was before. Eligible people should be able to continue to apply to renew their status, and others should be able to apply for the first time, just as soon as U.S. Citizenship and Immigration Services (USCIS) indicates it is accepting applications.

Biden has ambitions to do more, however. His plan includes an intention to expand DACA, by exploring “all legal options to protect [recipients’] families from inhumane separation.”

This sounds similar to another Obama-era Executive Order, which attempted to create Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This order never took effect, however, after federal court injunctions ordered it be halted. To actually create such an expanded program will require new application procedures, and will no doubt engender more lawsuits, so this part of the Biden plan might be a longer time coming.

In addition, the Biden plan looks forward to eventual Congressional action, stating that “Dreamers and their parents should have a roadmap to citizenship through legislative immigration reform.” That last bit will obviously take much longer, and will depend on cooperation by Senate Republicans.

Thus, the overall uncertainty that comes with DACA status is likely to persist for some time. But for now, at least, people with DACA can breathe a sigh of relief and start planning for January of 2021.

Effective Date: November 7, 2020