September 6, 2017
On September 5, 2017, the Trump Administration announced it would phase out the Deferred Action for Childhood Arrivals (DACA) program over the next six months, affecting some 800,000 DACA recipients. According to the U.S. Citizenship and Immigration Services, more than 400,000 people living in California have applied for the DACA program since its inception under the Obama Administration in 2012. The decision to phase out DACA raises a host of questions and impacts educational communities as students, employees, and families respond to this news.
The Department of Homeland Security (DHS) will continue to consider initial DACA requests and work authorization applications that were filed and pending as of September 5, 2017. DACA recipients whose permits are scheduled to expire before March 5, 2018 must apply for renewal before October 5, 2017. No new DACA applications will be processed on or after September 5, 2017.
Litigation over ending DACA is already in motion, while Congress attempts to enact alternative legislation. We
will continue to issue updates as the situation unfolds.
What is DACA?
DACA allows eligible individuals who were brought to the United States as children to apply for deferred action on immigration enforcement, and to obtain work permits, for a renewable two-year period. The program was enacted as a means of shifting immigration enforcement away from "low priority" individuals with good behavior, given Congress’ failure to pass the DREAM Act, which would have provided a pathway to permanent residency for unauthorized immigrants brought to the U.S. as children.
Does the phase-out of DACA affect access to public education for undocumented K-12 students? No.
DACA does not affect access to public education for children in K-12 grades. All children in the U.S. have a constitutional right of equal access to education, irrespective of their immigration status. (See Plyler v. Doe (1982) 457 U.S. 202 [under the Equal Protection Clause of the Constitution, states may not deny any child access to a public elementary and secondary education based on immigration status].) Joint guidance on school enrollment procedures from the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice likewise recognizes that all children are entitled to equal access to a basic public education regardless of their actual or perceived race, color, national origin, citizenship, immigration status, or the status of their parents/guardians.
In California, all children between the ages of 6 and 18 must attend school under compulsory attendance laws. California law also entitles all students to a public school learning environment free from discrimination, bullying, violence, and intimidation.
Whether a student is a DACA recipient is thus irrelevant to their right to attend K-12 public schools. School districts and county offices of education that prohibit or discourage children from enrolling in schools because they or their parents/guardians are not U.S. citizens or are undocumented may be in violation of state and federal law. All students, regardless of their immigration status, must be provided equal access to school.
With DACA being phased out, can undocumented students continue to attend public colleges in California? Yes.
The DHS confirmed in a September 5 document entitled "Memorandum on Rescission of Deferred Action for Childhood Arrivals" that students with current DACA status continue to be protected until their two-year terms expire.
Undocumented students enrolled in or wishing to apply to public colleges and universities have some protection under California law. The California Dream Act allows undocumented and non-resident documented students who meet eligibility requirements to apply for private scholarships funded through public universities, state-administered financial aid, University grants, community college fee waivers, and Cal Grants. California community college districts are required to exempt non-resident special part-time students from the requirement to pay non-resident tuition for community college credit courses.
The California Community Colleges, California State University, and University of California have affirmed their commitment to all students regardless of immigration status, as have numerous school districts and local public agencies.
What should educational institutions tell students and parents who ask about the end of DACA?
Immigration issues are complex and fact specific. Schools and colleges may certainly express support for their students and families, but should avoid giving legal advice or making predictions about the
consequences of any particular course of action in connection with an individual’s immigration status. Students, families, and employees may be encouraged to consult an immigration attorney for advice.
Will the phase-out of DACA impact recipients’ employment status? Not right away.
Rescission of DACA has no immediate impact on DACA recipients’ employment rights or status. According to the DHS, work authorizations issued to DACA recipients will not be revoked and remain valid until they expire. When a DACA work authorization expires and is not renewed, the individual (unless he or she has secured another authorization) may no longer be eligible to work in the U.S. Employers have not been authorized to take any employment action in response to the September 5 announcement. Questions about specific employment issues should be addressed to legal counsel.
Is this the end of legal protection for the Dreamers? Not necessarily.
In his September 5 statement, Attorney General Sessions described the six-month wind-down process as giving Congress time to act. (DACA was enacted in 2012 via Executive Order, not through an act of Congress.) Currently pending before Congress are four bipartisan bills that each would protect qualified individuals who came to the U.S. as children:
The Bridge Act – Introduced on December 9, 2016, this bill would allow individuals who are eligible for or have already received work authorization and temporary relief from deportation through DACA to continue living
in the U.S. with permission from the federal government.
The American Hope Act – This bill was introduced on July 28, 2017 and would give young undocumented immigrants who were brought to the U.S. as children protection from deportation and an opportunity to obtain legal status if they meet certain requirements.
The Recognizing America’s Children Act – Introduced on March 9, 2017, this bill would give Congress three years to work out a more permanent solution on immigration, preserving DACA in the interim.
The Dream Act – This bill was reintroduced on July 20, 2017; it would provide a direct path to citizenship for people who are undocumented, have DACA or temporary protected status, and graduate from U.S. high schools and then attend college, enter the workforce, or enlist in the military.
These resources may be useful to your educational community:
Immigrant Legal Resource Center – publication providing information on options are available if DACA ends. https://www.ilrc.org/sites/default/files/resources/if_daca_ends.pdf
Ed Trust West, Undocumented Students in California, What You Should Know - https://west.edtrust.org/resource/fact-sheet-undocumented-students/