DACA concerns continue after arrest of DACA beneficiary.

Anxiety about the fate of DACA and individuals subject to its protections continue to fester despite the fact that the Trump administration has not made any official move to rescinded DACA.

The latest incident that has triggered the rise in anxiety surrounding DACA has been the arrest of a DACA recipient.  According to reports in the press (an article by The Chronicle of Higher Education can be found here) a 23 year old Mexican immigrant, who was a recipient of DACA protections, was taken into custody based upon his admission that he was affiliated with a gang and thus constituted a risk to public safety. The detainee’s lawyers are asserting that he was pressured into admitting that he was a member of a gang and thus should not have been taken into custody. Apparently this matter has been set for a hearing before a federal judge on Friday, February 17.

Although it is somewhat understandable that any event surrounding ICE enforcement actions will create a stir, it appears that this action is unremarkable and is a stand alone action divorced from any new DACA initiative by the Trump administration.

This issue needs to be understood within the context of the standards articulating DACA eligibility.  There are 5 standards that must be met to qualify for (and maintain) DACA status as articulated in Janet Napolitano’s original deferred action memorandum. The salient standard in this case, as articulated in the memo, is that an individual will be eligible for the deferred prosecution program if they have

“not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety”

It would appear from the plain language of the DACA memorandum that DACA benefits are not unqualified and may be subject to rescission if a person constitutes a threat to public safety, and I think it goes without saying that there is alway going to be some level of prosecutorial discretion about whether a person continues to quality for deferred prosecution–deportation proceedings.

This appears to be a singular fact specific instance of whether or not the detained individual poses a threat to national or public safety.  This situation should not give rise to alarmist concerns about whether there has been a shift by the Trump administration regarding its support (or lack thereof) for the DACA program.



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