Protecting a Dream: Analyzing the Level of Review Applicable to DACA Recipients in Equal Protection Cases

Faced with congressional inaction regarding comprehensive immigration reform, the Obama administration, through the Department of Homeland Security (DHS), implemented the Deferred Action for Childhood Arrivals (DACA) program in an effort to give young undocumented noncitizens the opportunity to contribute their skills and education to the American community by granting them deferred prosecutorial action and work authorization for a renewable term of two years. To date, DHS has granted DACA relief to over 521,825 young immigrants who would not otherwise be able to legally work in the United States. Although DACA recipients enjoy federal work authorization, states have adopted policies that restrict the benefits they receive from their employment authorization and bar them from pursuing certain professions. These policies treat DACA recipients differently from other noncitizens with temporary work permits. Yet, it is still unclear what level of review courts should apply to Equal Protection challenges arising from these policies because, although the DACA program effectively deems recipients lawfully present, it grants them no immigration status. This Comment argues that DACA recipients, like other lawfully present noncitizens, are entitled to heightened scrutiny in Equal Protection claims. First, this Comment will provide a general overview of judicial interpretation of the Equal Protection Clause. It will also explain the three major categories of noncitizens under current immigration law. Next, this Comment will examine judicial decisions in Equal Protection challenges regarding various categories of noncitizens. Lastly, this Comment will analyze why DACA recipients are entitled to heightened scrutiny under the Equal Protection Clause