Lawfully Present in an Undocumented Body: – N.Y.U. Journal of Legislation & Public Policy

Defining the “DACA Status” & A Legal Analysis of Defense Against Removal Through Equitable Estoppel

By Cinthia Zavala Ramos

March 18, 2025

On June 15, 1982, the Supreme Court in Plyler v. Doe held that states cannot deny public education to undocumented children living in the United States.¹ Thirty years later, the Department of Homeland Security (“DHS”), under the direction of the Obama administration, provided these children the tools to be able to utilize their education. On June 15, 2012, Deferred Action for Childhood Arrivals (“DACA”) was created. DACA is a significant exercise of prosecutorial discretion that offers temporary relief from deportation (deferred action) and work authorization to certain young undocumented immigrants who came to the United States as children. To be eligible, applicants must meet specific criteria and not have any disqualifying factors that would make them subject to removal.² Unlike federal legislation, DACA does not provide permanent legal status and must be renewed every two years.³

While DACA was (and still is) a temporary solution, its effects cannot be understated. DACA enabled an estimated 832,881 eligible young adults to work lawfully, attend college, and plan their lives without the constant threat of deportation and permanent exile.⁴ A 2019 national survey of DACA recipients found that 58% of respondents elevated to a job with better pay, 48% moved to a job with better working conditions, and 53% were able to get a job with health insurance or other benefits. DACA also enabled 79% of respondents to become “financially independent” and 93% to pursue “educational opportunities that [they] previously could not.”⁵

Nevertheless, DACA has been a limited band-aid for a problem that is bigger than its recipients and plagues the 11 million undocumented people present in the U.S.⁶ Moreover, even though DACA covers a select and small class of people, it has been under attack since its inception. Most recently, on January 17, 2025, the U.S. Court of Appeals for the Fifth Circuit ruled that parts of DACA were “manifestly contrary” to settled immigration law, resulting in the removal of work permits and other benefits from DACA recipients in Texas.⁷ This decision comes at a time when the country is witnessing the cruelest deportation and detainment efforts in modern U.S history.⁸

How did we get here?

In 2014, President Obama said, “[p]recisely because [DACA] is temporary, Congress needs to act.”⁹ Eleven years later, Congress has failed to act and 530,000 DACA recipients are still building their lives and careers with an unstable status; two-year increments at a time.¹⁰ Moreover, while this temporary solution was meant to provide relief for a rolling population of undocumented youth, the DACA population has become closed off, with no new DACA applications processed since 2021.¹¹ Out of the more than 1.3 million youth eligible for DACA when it was originally implemented, only 530,000 individuals are currently afforded this protection.¹²

In September 2017, Acting DHS Secretary Elaine Duke, under the Trump administration, issued a memorandum (“Duke Memorandum”) and rescinded the 2012 Napolitano Memorandum. In effect this memo rescinded DACA and ordered a winddown of the program.¹³ This act was immediately challenged by U.S. District Courts in California, New York, Maryland, and DC, and the suit finally made its way to the Supreme Court in its 2019-2020 term.¹⁴ On June 18, 2020, the Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California. This opinion, however, was mainly concerned with Duke’s noncompliance with Administrative Procedure Act (“APA”), and not the merits or legality of DACA. The court further affirmed the federal government’s right to revoke DACA.¹⁵ Since then, DACA has continued to be embroiled in a series of legal challenges.

In the aftermath of the Supreme Court decision in Regents, the dwindling DACA population is left bare and vulnerable—uncertain as to what rights they have, if any, in the face of possible removal. To apply for DACA, many recipients have had to “come out of the shadows” or report themselves as undocumented to USCIS in order to receive the benefits from DACA. Many, who were unrepresented minors at the time, consented to give their information and biometrics to USCIS every two years. This was only with the guarantee, both on the application form and from DHS, that their information would not be shared with U.S. Immigration and Customs Enforcement (“ICE”) for removal proceedings.¹⁶ Many DACA recipients have no alternative form of relief and are at threat of removal if the new Trump administration fulfills its promise to end the program.¹⁷ Life in the shadows, without surveillance, is no longer a possibility for DACA recipients.

During this crucial time, it is important to (1) survey what rights DACA recipients have as undocumented people with a “DACA Status,” and (2) explore novel legal defenses, such as equitable estoppel, that can be raised as a defense against removal for DACA recipients.

I. Defining the “DACA Status”

Over the years, the Supreme Court has begun vest undocumented people within the U.S. with important, although limited, constitutional protections. An “alien”¹⁸ outside of the U.S has little to no claim to any constitutional protection or obligations.¹⁹ However, once they enter the country, the Due Process Clause applies to them and “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”²⁰

Within the discussion of what constitutes an “entry” exists a spectrum of due process rights. At one end of the spectrum, a noncitizen who has never been “admitted” into the U.S. (even if they are detained on U.S. soil) is not afforded the right to be seen before an immigration judge or have their writ of habeas considered.²¹ On the other end of the spectrum, once an immigrant “lawfully enters and resides in this country” they become “invested with the rights guaranteed by the Constitution to all people within our borders.”²²

DACA recipients somehow straddle both ends of this spectrum. While the mode of initial entry for DACA recipients varies, since 2012 DACA recipients have built the “substantial connections” that grant them more protections than other undocumented individuals who have recently arrived. While DACA does not confer lawful immigration status upon an individual,²³ an individual is not considered “unlawfully present during the period” when DACA is in effect.²⁴ An individual who has received deferred action is authorized by DHS to be in the United States for the duration of the deferred action period and is considered “lawfully present” for that time period. So, while DACA recipients have “lawful presence” for the purposes of admissibility and for certain public health benefits (Social Security, Drivers License, ACA), they have not been granted lawful immigration status.

DACA recipients occupy this strange liminal space, where their work permits, driver’s licenses, and access to education allow them to build a life like legal permanent residents or U.S Citizens. However, since they never had lawful status to begin with, it is unclear what legal protection they have in the face of removal proceedings. In interpreting the current immigration framework, the Supreme Court, time and time again, has emphasized that deportation is not a punishment but instead a civil proceeding.²⁵ As a result, the due process rights that are afforded to a criminal defendant – the right to government-appointed counsel, the privilege against self-incrimination, the ban on cruel and unusual punishment, and the right to a speedy trial–are not necessarily owed to noncitizens defending against deportation or removal. However, federal district courts like the U.S. Southern District of California in Torres have attempted to clarify what constitutional protections may be owed to DACA recipients due to their unique legal position.

The Ninth Circuit’s “DACA Status” and DACA’s Significant Liberty Interest

Courts in the Ninth Circuit have begun to grapple with what it means to have “DACA status” and have landed at a liminal and novel space. In a DACA termination proceeding, the U.S. Southern District of California rejected the government’s argument that DACA is “purely discretionary” and its recipients “possess no liberty, property, or other constitutional interest.”²⁶ They instead found that DACA recipients enjoy significant “liberty and property interests, including the right to obtain lawful employment authorization and the right to be considered lawfully present in the United States.”²⁷ This “DACA status” is achieved once five “objective and non-discretionary criteria” outlined in the Napolitano Memo are satisfied: a person must have “entered the United States before their 16th birthday and prior to June 2007; lived continuously in the United States during the previous five years; was currently in school, a high school graduate or was honorably discharged from the military; was under the age of 31 as of June 15, 2012; and not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, nor posed a threat to national or public safety.”²⁸ The Torres court argues that in fulfilling these criteria, an undocumented immigrant gains all the significant “liberty and property interests” that the DACA status grants.²⁹ With “liberty and property interests at stake” in mind, the court found that the DACA plaintiff, under the Due Process Clause of the Fifth Amendment, was “entitled to notice of a DACA termination hearing and an opportunity to meaningfully respond to the notice of DACA termination before DACA status is revoked.”³⁰ This is a significant interest, as non-citizens’ right to a fair hearing is not always guaranteed.³¹ While this argument alone was not enough in Torres to halt the DACA termination, it was successfully utilized in the U.S Western District Court of Washington. There, a DACA recipient enjoined the government from terminating his DACA status after they accused him of gang affiliation without due process, thus violating his “liberty and property interests.”³²

The Torres court signals a trend in efforts that have transformed DACA from a sweeping exercise of prosecutorial discretion into a non-statutory yet affirmative immigration status. While DACA is not a statutory immigration status, DACA recipients must apply to gain work permits similar to many J-1 and F-1 visa students. Similarly to DACA, USCIS reviews the J-1 visa applications to “ensure the applicant meets the requirements and then uses its discretion to grant immigration status and work authorization.”³³ The main difference between J-1 visas and DACA is that Congress has codified the process for obtaining a J-1 visa in a federal statute but has not done so for DACA.³⁴

Over the past decade, DACA recipients have benefitted from a combination of federal and state aid as they build their lives, all while remaining “undocumented.” On May 3, 2024, the Biden Administration announced that DACA recipients would be eligible to apply for the Affordable Care Act (ACA) coverage, estimating that around “100,000 young people” would benefit.³⁵ This announcement made DACA one of the few non-statutory immigration statuses covered by the ACA, joining the ranks of other affirmative immigration statuses in accessing this benefit. While DACA recipients do not qualify for federal aid for education, in 19 states and counting, DACA-eligible students qualify for both in-state tuition rates at public universities and state financial aid, which not even their F-1 or J-1 peers qualify for.³⁶

The many iterations of this “DACA status” reflect significant liberty interests and property rights that have been vested in DACA over the past decade. Rights that can provide novel defenses against deportation outside immigration law. One such defense is found in contract law: equitable estoppel.

II. Equitable Estoppel in the Immigration Context

The Standard of Affirmative Misconduct

Equitable estoppel, or estoppel in pai is a judicial remedy by which a party is prevented from using a right against another because of some improper action on their part. This doctrine applies especially when the right arises “out of misleading action from the person claiming the right.”³⁷ Under common law, equitable estoppel could not be employed against the government.³⁸ The courts have attempted to over time “formulate a more equitable solution to the problem presented when a person is injured as a result of his reliance on a misrepresentation by a government official.”³⁹ In 1973, equitable estoppel was utilized against the government for the first time in the immigration context in INS v. Hibi. The Hibi Court indicated that the “government might be subject to estoppel if it were guilty of ‘affirmative misconduct.’”⁴⁰ Although courts continue to rely on this “affirmative conduct” metric, the Court did not explain what it would entail.⁴¹

Among the federal circuits, different sets of standards for Hibi’s “affirmative misconduct” have been applied. In the Ninth Circuit, affirmative misconduct was defined as “requiring some form of misfeasance on the part of the government.”⁴² The government’s failure to provide notice was seen as “mere nonfeasance” and was not enough to meet the standard.⁴³ The Second Circuit concluded that this test required “only carelessness which, in the absence of an estoppel, would lead to serious injury.”⁴⁴ In the context of this murky and almost unnavigable standard, very few immigrant plaintiffs have succeeded in successfully raising equitable estoppel against the government. Joining this narrow pool, however, are DACA recipients who, while not possessing a lawful immigration status, have been found to have valid claims for equitable estoppel in three circuits: the Second, Fourth, and Ninth.

Information Sharing with ICE as Affirmative Misconduct in DACA

Since the inception of DACA, recipients have lived in fear of information sharing with ICE. When the DACA applications initially became available, many undocumented youth worried that this would be a trap and feared reporting and identifying themselves to USCIS. DHS assured practitioners and recipients that the information would not be shared or used in “immigration enforcement proceedings” except in limited circumstances (i.e., fraud, threats to public safety or national security).⁴⁵ Many DACA recipients applied for the program under the promise that removal action would not follow. In exchange for a work permit and deferred action on their case, DACA recipients provided everything needed to substantiate their removal and that of their loved ones: their addresses, their biometrics, and the information of their family members. Information that DHS may have never obtained otherwise. Some legal scholars even call the submission of a DACA application “equivalent to the confession of a crime” as it requires “admission of the individual’s unlawful immigration status, which could result in the harsh penalty of deportation or even a criminal prosecution.”⁴⁶ The government asked DACA recipients to self-incriminate, and this “bait-and-switch tactic” forced an admission of alienation but also “a confession of an unlawful act,” which implicates the Fifth Amendment.⁴⁷ Whether the Fifth Amendment’s right against criminal self-incrimination is implicated or not, DACA recipients gave substantial information in exchange for deferred action for two years.

For DHS to use DACA application information for removal would count as “affirmative misconduct” in many federal circuits. Not only did DHS promise not to use this information, but it could lead to significant injury– all things necessary for an equitable estoppel claim. The equitable estoppel defense, however, would only apply if DHS decides to pursue DACA recipients upon the rescission of DACA. Although this has not occurred yet, it is a very real and possible outcome. In 2020, DACA recipients and their advocates learned that USCIS had already started sharing information with ICE.⁴⁸ In the lead-up to the Supreme Court Regents opinion in 2020, the Trump administration also issued public threats to DACA recipients. As acting ICE Director Matt Albence proclaimed at a news conference January 23, 2020: “Those individuals may have DACA, but that doesn’t prevent us from going through the removal process…[once] DACA is done away with by the Supreme Court, we can actually effectuate those removal orders.”⁴⁹

III. DACA’s Equitable Estoppel Argument in the Second, Fourth and Ninth Circuits: Successes, Failures and Insights

The possibility of equitable estoppel was considered in three U.S District Court cases in 2018—Regents of Univ. of California v. United States Dep’t of Homeland Sec. (“Regents I”), Batalla Vidal v. Nielsen, and CASA de Maryland v. U.S. DHS (“Casa”). In all three cases, the judges found that the equitable estoppel argument could be applied against the government by DACA recipients.⁵⁰

In Regents I, the plaintiffs’ equitable estoppel claim was dismissed because the court found that the allegations in the complaints failed to meet the Socop–Gonzalez v. I.N.S. standard for affirmative misconduct.⁵¹ For a successful showing of affirmative misconduct in the Ninth Circuit, plaintiffs must show that “the government’s past statements regarding DACA’s legality were more than mere negligence,” or that “the alleged change in the agency’s information-use policy was the result of an affirmative misrepresentation.”⁵² In 2018, all plaintiffs could show were contradictory policies under two different administrations that–without further proof–did not surmount to more than “mere negligence.”⁵³ Although their claim was dismissed, the court did (1) affirm the merits of a DACA equitable estoppel claim against the government and (2) confirm that estoppel “does not require that the government intend to mislead a party.”⁵⁴

In Casa, plaintiffs successfully alleged DHS’s “affirmative misconduct” and the court enjoined DHS from using DACA applicants’ personal information for immigration enforcement purposes except as authorized by in camera review.⁵⁵ The court found that while estoppel would not apply to DACA’s recission, it would apply to any use of immigration enforcement of information collected from DACA recipients during their “registrations.”⁵⁶ The court also found that the government had in fact made changes to their information sharing policies, citing the government’s own inconsistency throughout the case.⁵⁷ In light of these inconsistencies, the district court found that it was possible that the government, “having induced these immigrants to share their personal information under the guise of immigration protections, could now use that same information to track and remove them.” To the court this “affirmative misconduct” lead to DACA recipients’ detrimental reliance, and given this “substantial risk for irreparable harm,” the court enjoined DHS from using registration information for removal.⁵⁸ However, this injunction was later vacated on appeal to the Fourth Circuit, who denied that the government had promised not change its policies.⁵⁹

Unlike Regents I and Casa, the plaintiffs in Batalla Vidal raised an APA, not estoppel, claim against DHS’s information sharing policy. They alleged that DHS “arbitrarily and capriciously changed DHS’s information-use policy.”⁶⁰ In 2018, the only evidence the plaintiffs could present in court was a document of frequently asked questions regarding DACA published by USCIS on November 30, 2017 (the “FAQs”). Unfortunately, on this very FAQ, DHS wrote that “information-sharing policy has not changed in any way since it was first announced.”⁶¹ However, the court clarified that, with more evidence, plaintiffs would have a “compelling claim to relief,” citing the estoppel claims in Regents and Casa.⁶² If the plaintiffs could provide evidence that DHS has been lying about these assurances, an estoppel claim would win, at least in the Second Circuit.

The DACA recipients ultimately could not prove affirmative misconduct in the circuits and lost their equitable estoppel claims. However, the district court cases affirm the merits of this claim, and if additional evidence of affirmative misconduct becomes available, they will lay the groundwork for a successful claim in the future.

IV. Biden Administration Changes and a Future Defense Against Removal

Responding to Batalla Vidal and Regents: Make the Road NY v. DHS FOIA and Proof of Affirmative Misrepresentation and Deliberate Lies

In 2018, both the Batalla Vidal and Regents I courts asked for proof of “affirmative misrepresentation” or “deliberate lies” to successfully raise a claim of equitable estoppel against removal. While the court was rendering their opinions, Make the Road NY (“MRNY”) and CT filed a Freedom of Information Act (“FOIA”) complaint⁶³ in the Second Circuit. In 2020, this FOIA rendered information that would have been crucial for plaintiffs in both Batalla Vidal and Regents.

Through this FOIA, MRNY found that information DACA applicants shared in confidence in their applications could be accessed by ICE.⁶⁴ Documents obtained through the FOIA request contradicted multiple past declarations by USCIS. DHS had on multiple occasions promised that information had not been shared, on the DACA application form instructions, on their website, and in Batalla Vidal, Regents I, and Casa. However, the FOIA revealed that information provided with a DACA application was in fact not protected from disclosure to ICE for immigration enforcement except in limited circumstances.⁶⁵

Repeatedly, DHS broke the guarantee they had made to DACA recipients about information sharing. Particularly telling is an email exchange in September 2017, between DHS appointees Gene Hamilton and Jonathan Hoffmanon: “USCIS and ICE already share information about DACA beneficiaries. There’s no way to stop that… There is no way to take that back.”⁶⁶ Two weeks later, the agency decided to omit this information from a congressional testimony, where any mention of this information-sharing policy was removed to “not generate anxiety among DACA requestors.”⁶⁷ An internal email from September 20, 2017, showed screens from several databases—including ones accessed by ICE—“displaying information about DACA recipients, including when their work permits are set to expire.”⁶⁸

Since 2017, the government has publicly guaranteed one policy and implemented another.⁶⁹ This behavior clearly constitutes, if not a “deliberate lie,” at least a “pattern of false promises” as required by the Regents I court.⁷⁰ In 2018, plaintiffs could not meet the standard set by the Batalla and Regents I courts. However, they now have evidence that exposes lies from DHS and ICE, which could advance their claim for equitable estoppel in the event of removal enforcement.

Responding to Casa: Increased Assurances within the Biden Administration and Codification of Information Sharing Policy in the Code of Federal Regulations (8 C.F.R. § 236.23)

The Fourth Circuit in Casa claimed that DHS had not made promises to keep their information-sharing policy fixed. And if there is no promise established, the court reasoned, there can be no reasonable reliance, as required for equitable estoppel.⁷¹ However, in light of the Biden administration’s fortification of DACA and the continued renewals since, there lies a codified promise and thus a claim for equitable estoppel for applicants who renewed after 8 C.F.R. § 236.23 was put in place.

On August 24, 2022, in efforts to “do everything in [their] power to preserve and fortify DACA” the Biden Administration issued a Final Rule on DACA, codifying its provisions in the Code of Federal Regulations.⁷² This final rule, 8 C.F.R. § 236.23, contains two important provisions with regard to information sharing: (C)(2) If USCIS denies a request for DACA, they will not “refer a requestor’s case to [ICE] for possible enforcement action based on such denial” and (e)(1): information contained in a request for DACA “will not be used by DHS for the purpose of initiating immigration enforcement proceedings against such requests.”

These changes, as demonstrated in the Final Rule Notice and Comment 453-page report, were deliberately done (1) to fortify and codify DHS’s “longstanding policy, information provided by DACA requestors is collected and considered for the primary purpose of considering their DACA requests and may not be used for immigration enforcement-related purposes apart from limited exceptions” and (2) “to minimize concerns that DACA requestors may have in providing their information through the submission of a DACA request.”⁷³ The Biden administration wanted to leave no ambiguity as to the information-sharing policy and repeatedly guaranteed safety in the Final Rule and the subsequent press statement and presidential memos.⁷⁴ This, along with continued support for DACA in various presidential and DHS memos (2017, etc.) only promoted reliance on the program by DACA recipients and others

Nowhere in the new guidelines does it say this provision is subject to change or that “modified, superseded, or rescinded at any time without notice.”⁷⁵ In light of these fortifications and clarity about what DHS can do with the DACA information, it would be difficult for any court to say that “the government did not make such a promise” to DACA about information sharing when the government calls its now codified information sharing policy “longstanding.”

Furthermore, even if a court decides that 8 C.F.R. § 236.23 is just a mere change in administration policy, renewal applicants still have a feasible argument for equitable estoppel. The arguments so far have focused on reliance, starting from the 2012 Napolitano Memo, which has received pushback, especially in the Ninth Circuit in Regents. It can also be argued that those who renewed after August 24, 2022, and relied on 8 C.F.R. § 236.23’s information-sharing policy when submitting updated addresses and biometrics, do have a claim. However, this would cover fewer individuals as the DACA population has dwindled over time. While the future of 8 C.F.R. § 236.23 is still embroiled in legal battles, its existence and what it means for DACA recipients to rely on it open up other avenues for government relief.

V. Conclusion: Accruing Life

After 12 years, it is undeniable that DACA recipients have accrued a significant amount of liberty and reliance interests. These reliance interests were so strong that even the Fifth Circuit in Texas v. United States could not refute them. While the Fifth Circuit found that Texas had succeeded on the merits, they affirmed the lower court’s decision to maintain the stay and keep forbearance against deportation: “the immense reliance interests that DACA has created–guide us to preserve the stay as to the existing applicants. ‘DACA has had profound significance to recipients and many others in the [now-twelve] years since its adoption.’”⁷⁶ DACA’s huge reliance interest once again protected DACA recipients from deportation.

As the rest of the year continues to be clouded in uncertainty for DACA recipients and undocumented immigrants at large, all that can be done is to keep going. To keep creating the memories, the families, the sorrows and immense joys that constitute a life. Each year that passes is another year of life or ‘reliance’ as our legal code defines it. Another year of life that the Supreme Court will invalidate if they decide to end the program and its forbearance policy. Until then, all there is to do is for advocates to be creative and brave, and for undocumented individuals to continue to accrue life and joy as a form of resistance.

Cinthia Zavala Ramos, J.D. Class of 2025, N.Y.U. School of Law.

Cinthia is a 3L at New York University Law School and a Student Clinician in the NYU Advanced Immigrant Rights Clinic. A special thanks to my professors and fellow clinicians in the Immigrant Rights Clinic, whose client-centered advocacy and praxis inspire me to be a better advocate. Thanks are also owed to Ian Leach and Brenda Mendez for being the first readers of this piece and encouraging me to share it. Finally, thank you to the online editors of the N.Y.U. Journal of Legislation and Public Policy.

Suggested Citation: Cinthia Zavala Ramos, Lawfully Present in an Undocumented Body: Defining the “DACA Status” & A Legal Analysis of Defense Against Removal Through Equitable Estoppel, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2025).

1
“It is thus clear that whatever savings might be achieved by denying these [undocumented] children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.” 457 U.S. 202, 230 (1982).
2
Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53152 (Aug. 30, 2022) (codified at 8 C.F.R. pts. 106, 236, 274a); Deferred Action for Childhood Arrivals (DACA): An Overview, Am. Immigr. Council (July 31, 2024), https://www.americanimmigrationcouncil.org/research/deferred-action-childhood-arrivals-daca-overview.
3
Id.
4
Id.
5
Id.
6
Profile of the Unauthorized Population: United States, Migration Pol’y Inst., https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US (last visited Mar. 6, 2025).
7
Texas v. U.S., 126 F.4th 392, 418 (5th Cir. 2025).
8
Pedro Gerson, Trump’s Gitmo Detention Center Would Be Bigger Than History’s Worst Concentration Camps, Slate (Feb. 2, 2025), https://slate.com/news-and-politics/2025/02/donald-trump-guantanamo-bay-gitmo-history-clinton.html [https://perma.cc/NQ4U-NBCL].
9
Phillip Connor, DACA 12 Years Later: From students to careers and families, Fwd.us (June 10, 2024), https://www.fwd.us/news/daca-anniversary [https://perma.cc/8HFZ-V76E].
10
Id.
11
Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Servs. (last updated Jan. 24, 2025), https://www.uscis.gov/DACA [https://www.uscis.gov/DACA].
12
Deferred Action for Childhood Arrivals (DACA): An Overview, supra note 2.
13
Memorandum from Elaine C. Duke, Acting Secretary of U.S. Dept. of Homeland Sec. on Recission of Deferred Action For Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/archive/news/2017/09/05/memorandum-rescission-daca [https://perma.cc/D7X8-K8WY].
14
Deferred Action for Childhood Arrivals (DACA): An Overview, supra note 2.
15
See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 16 (2020).
16
Ilona Bray, Who Qualifies for Deferred Action as an Immigrant Student or Graduate (DACA), NOLO (last updated Nov. 25, 2024), https://www.nolo.com/legal-encyclopedia/applying-deferred-action-dream-act-student.html [https://perma.cc/LVD7-MBD8].
17
Statement from President Donald J. Trump on DACA (Sept. 5, 2017), https://web.archive.org/web/20240229013530/https://uy.usembassy.gov/statement-president-donald-j-trump-daca.
18
The term “alien” is often used in case law surrounding immigrants and undocumented people in and outside of this country. I use it here to remain faithful to the text, but I reject its use in my own writing.
19
Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
20
Id.
21
See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020) (finding that an immigrant that had crossed 25 yards into the U.S had actually not “entered” the country).
22
Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.”); United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (stating in dicta that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”).
23
“This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.” Memorandum from the Dep’t of Homeland Sec. Sec’y Janet Napolitano to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Prot. (June 15, 2012).
24
Frequently Asked Questions, Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Serv. (Jan. 24, 2025) https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions [https://perma.cc/3NXV-L8HH].
25
“It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment.” Mahler v. Eby, 264 U.S. 32, 39 (1924) (citing Fong Yue Ting v. United States, 149 U.S. 698 (1893)).
26
Torres v. U.S. Dep’t of Homeland Sec., No. 17-CV-1840JM, 2018 WL 1757668 at *9 (S.D. Cal. Apr. 12, 2018).
27
Id.
28
Id.
29
Id.
30
Id.
31
See Thuraissigiam, 591 U.S. at 110–11.
32
Medina v. U.S. Dep’t of Homeland Sec., 313 F. Supp. 3d 1237, 1250 (W.D. Wash. 2018).
33
Megan Moleski, How to Protect DACA & Dreamers After the United States Supreme Court’s Decision in Department of Homeland Security v. Regents of the University of California, 54 UIC L. Rev. 1037, 1075-76 (2021).
34
Id.
35
Statements and Releases, Fact Sheet: Biden-Harris Administration Expands Health Coverage to DACA Recipients, The White House (May 3, 2024), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2024/05/03/fact-sheet-biden-harris-administration-expands-health-coverage-to-daca-recipients [https://perma.cc/3GPN-BDD5].
36
Heidi Rivera, The Cost of Attending College as a DACA Student, BankRate (Aug. 29, 2023), https://www.bankrate.com/loans/student-loans/cost-of-college-daca-students [https://perma.cc/5EHE-7RFM].
37
United States ex rel. Humble Oil & Refin. Co. v. Fidelity and Cas. Co. of New York, 402 F2d 893, 897 (4th Cir. 1968) (“Equitable estoppel is a well-established concept invoked by courts to aid a party who, in good faith, has relied, to his detriment, upon the representations of another.”).
38
Geraldine O’Donnell, Estoppel and Immigration, 22 Cath. Law. 287, 296 (1976).
39
Id.
40
Id.
41
Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) (“estoppel may only be justified, if ever, in the presence of affirmative misconduct by government agents.”).
42
O’Donnell, supra note 38; Santiago v. Immigr. & Naturalization Services, 526 F.2d 488, 493 (9th Cir. 1975).
43
Santiago, 526 F.2d at 493.
44
O’Donnell, supra note 38; Corniel-Rodriguez v. Immigr. & Naturalization Serv., 532 F.2d 301, 306–07 (2d Cir. 1976) (“[The] official’s noncompliance with an affirmatively required procedure, obviously designed to protect individuals in Juana’s precise situation, was at least as severe an act of affirmative misconduct”).
45
Deferred Action for Childhood Arrivals (DACA): An Overview, supra note 2.
46
Jessica Arco, A Dream Turned Nightmare: The Unintended Consequences of the Obama Administration’s Deferred Action for Childhood Arrivals Policy, 82 Geo. Wash. L. Rev. 493, 516 (2014).
47
Id.
48
Ex-DHS spokesman Jonathan Hoffman, Hamilton wrote, “USCIS and ICE already share information about DACA beneficiaries. There’s no way to stop that.” Maria Santana, DACA Recipients Shocked to Learn that ICE Has Access to their Information, CNN (Apr. 27, 2020), https://www.cnn.com/2020/04/26/us/daca-recipients-information-ice-access/index.html [https://perma.cc/3JA5-MXVR].
49
Id.
50
Regents of Univ. of California v. United States Dep’t of Homeland Sec., 298 F. Supp. 3d 1304, 1313 (N.D. Cal.), aff’d sub nom. Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018), rev’d in part, vacated in part sub nom. Regents of the Univ. of Cal., 591 U.S. 1 (2020) (“The Supreme Court has refused to adopt… ‘a flat rule that estoppel may not in any circumstances run against the Government’…our court of appeals has addressed such claims on the merits, and has held that the government may be subject to equitable estoppel if it has engaged in “affirmative misconduct.”); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 281 (E.D.N.Y. 2018), rev’d in part sub nom. Regents of the Univ. of Cal., 591 U.S. 1 (“To be clear, the court holds only that the [Plaintiffs] have not plausibly alleged that DHS actually changed its information-sharing policy. If these Plaintiffs were to allege additional facts giving the lie to Defendants’ assertion that there has been no change to this policy, they may have a compelling claim to relief”); Casa De Maryland v. U.S. Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 778–79 (D. Md. 2018), aff’d in part, vacated in part, rev’d in part, 924 F.3d 684 (4th Cir. 2019).
51
“[A] party must show (1) that the government engaged in “affirmative conduct going beyond mere negligence”; and (2) “the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage” if the requested relief is granted.” 298 F. Supp. 3d at 1313.
52
Id. (emphasis added).
53
Id.
54
Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir. 1989).
55
284 F. Supp. 3d at 779.
56
Id. at 778.
57
While their position during oral argument was that “no changes [were] made to the information-sharing policy,” government counsel later contradicted this in saying that DHS had been “quite clear that this policy on information-sharing can change.” Id. at 778.
58
Id. at 779.
59
924 F.3d at 706.
60
291 F. Supp. 3d at 279.
61
Id.
62
Id. at 281.
63
Juan Gastelum et. al, New Documents Reveal ICE Access to DACA Recipients’ Information, Nat’l Immigr. L. Ctr. (Apr. 21, 2020), https://www.nilc.org/2020/04/21/new-documents-reveal-ice-access-to-daca-recipients-information.
64
Id.
65
Id.
66
E-mail from Gene Hamilton, Senior Couns. to the Sec’y, U.S Dep’t of Homeland Sec., to Jonathan Hoffman, Office of Pub. Aff., U.S. Dep’t of Homeland Sec. (Sep. 2, 2017, 18:26:49 EST) (on file with author); see Dara Lind, Ice Has Access to DACA Recipients’ Personal Information Despite Promises Suggesting Otherwise, Internal Emails Show, ProPublica (Apr. 21, 2020), https://www.propublica.org/article/ice-has-access-to-daca-recipients-personal-information-despite-promises-suggesting-otherwise-internal-emails-show [https://perma.cc/DF2B-6XPB].
67
“Staff had prepared talking points for a question they expected to be asked at an upcoming Senate Judiciary Committee hearing: ‘Please explain how and when the personal information provided by DACA applicants is provided to ICE.’ A draft response included the sentence: ‘DHS personnel have mutual access to some of the electronic systems used by USCIS,’ or U.S. Citizenship and Immigration Services, the agency that runs DACA. But the sentence was removed by an agency lawyer. It was ‘not essential to responding to the specific question asked,’ the lawyer wrote, ‘and is likely to generate considerable anxiety among DACA requestors.’” Lind, supra note 67.
68
E-mail from Alexander King, Serv. Center Operations Directorate, U.S. Citizenship & Immigr. Serv., to Lori MacKenzie, Advisor to the Acting Dir., U.S. Citizenship & Immigr. Serv. (Sep. 20, 2017, 09:53 EST) (on file with author).
69
See Lind, supra note 67.
70
298 F. Supp. 3d at 1313.
71
924 F.3d at 706.
72
DHS Issues Regulation to Preserve and Fortify DACA, U.S. Dep’t of Homeland Sec. (Aug. 24, 2022) https://www.dhs.gov/news/2022/08/24/dhs-issues-regulation-preserve-and-fortify-daca [https://perma.cc/B62S-Y53R].
73
See 8 C.F.R. §§ 106, 236, 274(a) (2022).
74
Statements and Releases, Statement from President Joe Biden on Final Rule to Expand Health Coverage for DACA Recipients, The White House (May 3, 2024), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2024/05/03/statement-from-president-joe-biden-on-final-rule-to-expand-health-coverage-for-daca-recipients [https://perma.cc/69ZK-D8M3].
75
924 F.3d at 705–06.
76
Texas v. U.S., 126 F.4th at 422.