Deferred Action of Childhood Arrivals (“DACA”) permits young immigrants who were brought to the United States illegally by their parents to seek temporary protection from deportation.[1] DACA recipients are not granted lawful immigration status. DACA is not, in and of itself, a pathway to permanent residency.[2] However, a DACA recipient may attempt to obtain lawful immigration status through an existing lawful immigration pathway if eligible.[3] The U.S. Citizenship and Immigration Services (“USCIS”) has the sole discretion to determine whether an applicant has met the threshold criteria for eligibility and therefore merits a favorable exercise of prosecutorial discretion.[4]

The basic eligibility requirements for DACA benefits require that potential recipients have arrived in the U.S. before the age of 16 and have continuously resided in the U.S. since June 15, 2007.[5] Potential recipients must have graduated from high school, obtained a GED, or been honorably discharged from the military.[6] Finally, potential recipients must not have been convicted of a felony, significant misdemeanor, or three or more misdemeanors.[7]

DACA was established in 2012 by the Obama Administration.[8] At the time, the Secretary of the Department of Homeland Security, Janet Napolitano, announced the creation of DACA through a memorandum dated June 15, 2012.[9]  The USCIS, an agency of the Department of Homeland Security (“DHS”), began accepting DACA applications the following August.[10] The DHS subsequently released a memorandum that described the guidelines for granting or reviewing each application for deferred action.[11] A supplemental memorandum was released in November 2014, providing additional guidelines and amendments to the original memorandum released in 2012.[12] Since the creation of DACA, the Trump Administration has issued several memoranda seeking to rescind DACA, while the Biden Administration has sought to codify and preserve DACA.[13]

The basis for deferred action is prosecutorial discretion.[14] Prosecutorial discretion is a power delegated to the Executive Branch of the Federal Government by Article II of the United States Constitution.[15] Prosecutorial discretion has been interpreted very broadly, granting the executive branch the authority to decide whether to prosecute or decline to prosecute certain crimes.[16] Thus, when an agency decides to delay or defer an individual’s deportation, it is exercising prosecutorial discretion.[17] There are three theories behind the use of prosecutorial discretion in the context of immigration: (1) economic, (2) humanitarian, and (3) the relationship between congressional inaction and the public demand for an administrative solution.[18] The third theory of prosecutorial discretion is what led to the creation of DACA in 2012.[19]

Critics argue that DACA exceeds the executive branch’s authority by bypassing Congress.[20] Article I, Section 8, of the United States Constitution delegates the power to make laws about immigration and naturalization to Congress.[21] Critics argue that because the Obama Administration created DACA after the 2010 and 2011 rejections of the DREAM Act, the Administration was attempting to bypass Congress’s legislative authority.[22] Since its 2012 implementation, there have been various lawsuits challenging the Constitutionality of DACA.[23]

In the recent case of Texas v. United States, the court held that DACA is unlawful because it violated the notice-and-comment rulemaking requirements of the Administrative Procedure Act (“APA”) and the Immigration and Nationality Act (“INA”), stating “DACA remains ‘manifestly contrary to the INA.’”[24] Courts have often ruled on whether DACA or its rescission followed the proper procedures laid out in APA.[25] Still, there has yet to be a case that has clarified with any degree of certainty whether DACA is constitutional under either Article II or the Take Care Clause.

Many critics, in fact, point to the Take Care Clause of Article II, Section 3, of the United States Constitution to argue that DACA is unconstitutional.[26] The argument is that DACA undermines the Take Care Clause by circumventing Congress and declining to broadly enforce the immigration laws in place to combat illegal immigration.[27] Critics of DACA point to recent data to bolster their argument against DACA and to show that DACA itself does nothing to combat the problem of illegal immigration and may even incentivize further unauthorized entries.[28] The most recent data suggests that of the 14 million illegal immigrants estimated to be in the United States, only about 6 million had some form of temporary protected status that delayed their deportation.[29] That leaves roughly 8 million illegal immigrants without legal permission to be in the United States.

The Court in Texas issued a stay pending appeal and reaffirmed the illegality of the 2022 DHS rule that attempted to codify DACA.[30] Following the decision in Texas, USCIS continues to accept and process renewal requests from current DACA recipients, as well as accompanying employment authorization applications.[31] USCIS also continues to accept initial DACA requests but is not currently processing them.[32] This issue is likely to be revisited by the Supreme Court.

As of March 31, 2025, there were 525,210 active DACA recipients.[33] Data suggests a decline in the number of DACA recipients between December 21, 2024, and March 31, 2025.[34]  The data also suggests that the decrease in the number of DACA recipients is connected to processing delays by USCIS.[35]

Since the ruling in Texas, DACA remains in legal limbo. DACA could be strengthened by congressional action, but a permanent legislative solution has not yet been addressed. Some scholars have suggested implementing a tiered legalization system in which undocumented immigrants could pay a set fee to obtain a work permit and remain in the United States legally, without having to obtain citizenship.[36] Other scholars have suggested a form of rolling legalization in which undocumented immigrants who have been in the United States for more than ten years could apply for legalization, which would not include a path to citizenship but would allow them to remain in the country legally.[37] Executive action has so far failed to preserve and codify DACA or to address the reality of the presence of a large population of undocumented immigrants. Ultimately, Congressional inaction could lead to the end of DACA.

[1] Deferred Action for Childhood Arrivals (DACA), USA.gov (Nov. 17, 2025), https://www.usa.gov/daca.

[2] Id.

[3] Id.

[4] Consideration of Deferred Action for Childhood Arrivals (DACA), USCIS (Jan. 24, 2025), https://www.uscis.gov/DACA.

[5] Id.

[6] Id.

[7] Id.

[8] Understanding Prosecutorial Discretion in Immigration Law, American Immigration Council (May 26, 2011), https://www.americanimmigrationcouncil.org/fact-sheet/understanding-prosecutorial-discretion-immigration-law.

[9] Nicole Hallett, Rethinking Prosecutorial Discretion in Immigration Enforcement, 42 Cardozo L. Rev. 1765, 1808 (2021).

[10] Understanding Prosecutorial Discretion in Immigration Law, supra note 6.

[11] Id.

[12] Defending DAPA and Expanded DACA Before the Supreme Court, American Immigration Council (Apr. 11, 2016), https://www.americanimmigrationcouncil.org/report/defending-dapa-and-expanded-daca-supreme-court.

[13] Hallett, supra note 7, at 1785-88.

[14] Id. at 1767-69.

[15] U.S. Const. art. II, § 3.

[16] Understanding Prosecutorial Discretion in Immigration Law, supra note 6.

[17] Id.

[18] See id.; Hallett, supra note 7, at 1765-70.

[19] Hallett, supra note 7, at 1807.

[20] Peter Margulies, The Fifth Circuit Holds That DACA Exceeds Executive Authority, Lawfare (Oct. 7, 2022), https://www.lawfaremedia.org/article/fifth-circuit-holds-daca-exceeds-executive-authority.

[21] U.S. Const. art. I, § 8, cl. 4.

[22] Hallett, supra note 7, at 1807-12.

[23] See Texas v. United States, 126 F.4th 392, 401-02 (5th Cir. 2025).

[24] Id. at 418.

[25] Id. at 402-04.

[26] Id.

[27] See Defending DAPA and Expanded DACA Before the Supreme Court, supra note 10.

[28] Lora Ries, DACA May Help “Dreamers,” but Illegal Immigration Hurts U.S. Workers, Taxpayers, and Wages, The Heritage Foundation (Oct. 14, 2020), https://www.heritage.org/border-security/commentary/daca-may-help-dreamers-illegal-immigration-hurts-us-workers-taxpayers.

[29] Jeffrey S. Passel & Jens Manuel Krogstad, U.S. Unauthorized Immigrant Population Reached a Record 14 Million in 2023, Pew Research Center (Aug. 21, 2025), https://www.pewresearch.org/race-and-ethnicity/2025/08/21/u-s-unauthorized-immigrant-population-reached-a-record-14-million-in-2023.

[30] Texas, 126 F.4th at 421-22.

[31] Consideration of Deferred Action for Childhood Arrivals (DACA), supra note 2.

[32] Id.

[33] Steven A. Camarota & Karen Zeigler, Estimating the Illegal Immigrant Population Using the Current Population Survey, Ctr. for Immigr. Stud. (Mar. 29, 2022), https://cis.org/Report/Estimating-Illegal-Immigrant-Population-Using-Current-Population-Survey.

[34] Id.

[35] Id.

[36] What Immigration Reform Should Look Like, The Heritage Foundation, https://www.heritage.org/border-security/heritage-explains/what-immigration-reform-should-look (last visited Mar. 4, 2026).

[37] Dante Chinni, Surprising Consistency on a Path to Citizenship for Long-Term Immigrants, Am. Communities Project (Jan. 6, 2026), https://www.americancommunities.org/surprising-consistency-on-a-path-to-citizenship-for-long-term-immigrants.