DACA Doesn’t Confer “Protection”

“Immigration Group Says Protected Dreamer Deported,” reads a recent CBS News Headline. The mainstream media is throwing a collective hissy fit because the Trump administration deported Juan Manuel Montes – a self-admitted illegal alien, present in the U.S. under the constitutionally questionable Deferred Action for Childhood Arrivals (DACA) program. And they’re now accusing Team Trump of political blasphemy for having had the temerity to ignore the Obama administration’s illegal executive amnesty.

However, it is the press, not the president, that has gotten it all wrong. Deferred action offers no legal protection of any kind. Under the American legal system, the Executive Branch of government is entitled to determine how and when it will enforce the law. This prerogative is referred to by a variety of names –prosecutorial discretion, executive discretion, administrative discretion. But they all mean the same thing: no one can force the Executive Branch to prosecute a particular individual for a specific violation of law.

Administrative discretion is usually exercised on a case-by-case basis. Typically, there is no formal application process and no method of designating someone as the recipient of administrative discretion. And the exercise of discretion is usually for the administrative convenience of the enforcement agency, not for the benefit of the individual against whom enforcement is being contemplated.

Deferred action is a form of administrative discretion. It is not a positive benefit that confers any legal entitlement. Instead the Department of Homeland Security (DHS) simply refrains from acting. But nothing binds the government to continued inaction. When it chooses, DHS may simply lodge charges with the Immigration Court or directly deport those who are subject to expedited removal.

The Obama administration’s transformation of administrative discretion into a blanket executive amnesty vastly exceeded the constitutional authority granted to the president. Administrative discretion developed to aid Executive Branch agencies in enforcing the law. It was never intended as a mechanism for thwarting the will of Congress. That’s why the state of Texas questioned the legality of the program and was able to obtain a preliminary injunction against its expansion.

Details in the Juan Manuel Montes case are still emerging. It appears that Mr. Montes had a criminal record and was apprehended by U.S. Customs and Border Protection after being observed unlawfully re-entering the U.S. at Calexico, California. But the actual facts and circumstances of the case are far from clear.

They’re also totally irrelevant. Contrary to popular opinion, Mr. Montes didn’t receive “protected status,” pursuant to DACA. He received a temporary reprieve. And when DHS decided that the clock had run on that postponement, it was well within its rights to remove him. Unlawful presence in the United States, in and of itself, is a valid basis for deportation.

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


  1. avatar

    I think the dim-ocraps missed the class that words are defined by the current general usage and the dictionary. You know, like the term “is”. According to my dictionaries and day to day usage in the corner gas station-quickie market, “Deferred” still means that I will put off, like, “l’ll get around to it some day”, “i’ll be filling my cars gas tank later”, ” “I’ll defer paying my taxes for several years, said the good Rev. Al.”……If all these now well educated on my dollar, Illegal, however they got here, went back to country they fly the flag of when they protest our world, that country would be the better for it. I guess they like our flush toilet system and our free benefits, instead of making their home country better. Deferred time is over.

  2. avatar

    NO NON-CITIZEN has the right to be in this country… period… especially illegal aliens.. they ALL should be removed.. taxpayers should NOT be supporting people who are here illegally… I’m fed up with people holding the illegal aliens above the laws and above the citizens here….

  3. avatar

    DACA is a Huge Cash Cow

    To the immigration attorneys. They lick their chops collecting legal fees to support illegals and our legal grand kids get the debt bill. Just deport ’em all and eVerify ’em too…

    • avatar

      Agree… am fed up with them being held above the laws… WAY past time to STOP ALL free benefits to ALL illegal aliens, along with mandating E-Verify 100%… and STOP ALL anchor babies… ENOUGH IS ENOUGH!!!