Frequently Asked Questions
Page numbers refer to DACA Diplomacy: Protecting United States Foreign Policy Interests Through Deferred Enforced Departure for DACA-Eligible Individuals.
Q: What is Deferred Enforced Departure (DED), what protections does it provide, and how long does it last?
A: DED is an exercise of the President’s constitutional authority to conduct the foreign relations of the United States by providing an automatic stay of removal and the ability to apply for employment authorization to foreign nationals. The President fixes the term of a grant of DED and can modify it at any time. (pg. 7)
Q: How is DED different from TPS and DACA?
A: Temporary Protected Status (TPS) is a statutory form of relief provided to individuals from countries who cannot safely accept their return because of armed conflict, environmental disaster, or other humanitarian conditions. The Secretary of Homeland Security, upon consultation with the Secretary of State, designates a country for TPS for an 18-month period, which can be extended for so long as conditions persist.
Deferred Action for Childhood Arrivals (DACA), first announced in 2012 and later codified through the regulatory process, is an exercise of the President’s power to prioritize the enforcement of the immigration laws. This authority is often called prosecutorial discretion. DACA requires individuals to apply for its protections for a fixed term, subject to renewal. (pgs. 4-5)
Unlike TPS and DACA, DED is based on the President’s foreign relations authority. DED does not require an application for the stay of removal it provides–only employment authorization under existing regulations. Also because of this, however, DED does not provide status or a fixed term of protection.
Q: How is DACA a foreign policy issue?
A: Withdrawing protections from DACA-recipients and failing to protect DACA-eligible individuals will negatively impact the United States’ ability to implement its strategy to address the root causes of migration in Central America and the Los Angeles Declaration on Migration and Protection. Additionally, withdrawing protections from DACA-recipients will have adverse consequences for the United States’ ability to attract and retain international students, a longstanding strategic advantage. (pgs. 13-23)
Q: Who has the authority to grant DED and what agency implements DED?
A: The President exercises the authority to defer the enforced departure of individuals by issuing a memorandum to the Secretaries of State and Homeland Security that specifies eligibility criteria and the duration of the deferment. That memorandum is published in the Federal Register along with any notice the memorandum instructs the Secretary of Homeland Security to publish with implementation procedures. Recipients do not need to apply for deferment. Under existing, separate regulations, recipients may apply for employment authorization. (pg. 7)
Q: What populations currently have DED?
A: Liberians and residents of Hong Kong have DED. Previously, Presidents have used DED to protect Salvadorans, Haitians, and Venezuelans, among other designations. (pg. 6)
Q: Does DED provide a roadmap to citizenship?
A: No.
Q: Does DED have to be used on a country-by-country basis?
A: There is no requirement that the President exercise DED on a country-by-country basis. The Department of Homeland Security itself does not appear to recognize a country-specific limitation on the President’s ability to grant DED. For example, in announcing procedures for employment authorization for residents of Hong Kong granted DED by President Biden, DHS noted that, “DED has been authorized in situations where foreign nationals or other groups of noncitizens may face danger . . . or when there are other foreign policy reasons for allowing a designated group of noncitizens to remain in the United States.” (pg. 10)
Q: Will granting DED to DACA recipients make it less likely that Congress will pass permanent relief?
A: No. The temporary protections afforded by DED have often resulted in long-term protections. Of the groups of non-citizens to whom Presidents have granted DED, four have received some form of protection from Congress (Liberia, El Salvador, Haiti, and the People’s Republic of China). While there have been serious issues with the implementation of these programs, they nonetheless represent Congressional relief. (pg. 12)
Q: Does DED need to go through the Administrative Procedure Act notice and comment process?
A: The President’s exercise of the DED authority is not subject to the notice and comment requirement of the Administrative Procedure Act because it is a “foreign affairs function.” In litigation challenging the recently announced parole processes for Cuban, Haitian, Nicaraguan, and Venezuelan nationals, the Administration has strongly defended the foreign affairs function in the context of the recently announced. (pg. 8)
Q: Is DED the only way to protect DACA recipients?
A: No, it would be one of many ways the White House could protect the DACA-eligible population. Congress should pass permanent relief through legislation, but if it does not, the President should consider all available options, of which DED is one.