USCIS Policy: DACA Termination for Firearm Purchase Attempts

U.S. Citizenship and Im migration Services Office of the Director Camp Springs, MD 20588-000 9 September 26, 2025 PM-602-0191 Policy Memorandum SUBJECT: Termination of Consideratio n of Deferred Action fo r Childhood Arrivals (D ACA) Based on DACA Recipien ts’ U nlawful A ttempts to P urchase a F irearm U nder 18 U.S.C. 922(g)(5) Purpose U.S. Citizen ship and Im migration Se rvices (USC IS) is instructin g USCIS office rs to initiat e certain post- adjudicative actions to en sure that D ACA is properly termina ted when DA CA recipients engage in certain unlawful acts. This memorandum provides guidance on the exercise of discretion for USCIS offic ers to issue a Notice of Inten t to Termin ate (NOIT) per applicable regulations and standards, citing th e unlawful at tempt to pu rchase a fir earm under 18 U.S.C. 922(g)(5) in cases where a DACA recipient has, withou t regard to inten t, 1 attempted to p urchase a f irearm and does not meet one of the exceptions provided in 18 U.S.C. 922(y)(2). 2 Authority • 8 CFR 236, Subpart C – Deferred Action for Chil dhood Arriv als • 18 U.S.C. 922 – Unlawful Acts Background Executive O rder (EO) 14161, Protect ing the United States fro m Foreign Terrorists an d Other National Security and Public Safety Threats, requires that the D epartment of Home land S ecurity (DHS) vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the U nited States. 3 When announced, the DHS DACA pol icy expressly state d 1 Mistake of law is not a defense unless the statute expr essly allows it. See Bryan v. Unit ed Stat es, 524 U.S. 184 (1998). For federal firearms laws, th e knowing requirement pertains to the act itself, not knowledge of the law. See United Stat es v. B eaver s, 206 F.3d 706 (6 th Cir. 2000). 2 18 U.S.C. 922(y)(2) provide s that Section 922(g)(5)(B) “doe s not ap ply to a ny ali en who has bee n lawfull y admi tted to the United Sates under a nonimmigrant v isa, if that alien is – (A) admitted to the United States for lawful hun ting or sporting purp oses or is in possessio n of a hunting licen se o r permit lawfully issued in the United States; (B) an official represe ntative of a foreig n governme nt who i s — (i) acc redite d to the Unite d States Gover nment o r the G overnme nt’s mission to an i nternat ional o rganiza tion ha ving i ts head quarte rs in the Unit ed S tates; or (ii) en route to or from another country t o whi ch that al ien i s accre dited; (C) an o fficial of a f oreign governme nt or a dist inguishe d forei gn visi tor wh o has bee n so de signate d by the Depart ment of State; or (D) a forei gn la w enforc ement o fficer of a frie ndly fo reign government entering the United S tates on official law enforcement business. ” 3 See Executi ve Orde r 14161, Pr otecti ng the United St ates From For eign T errorist s and Other N ational Securi ty and Public Safety Threats, 90 FR 8451 (Ja n. 30, 2025).

PM-602-0191: Termination of Considera tion of Defe rred Action fo r Childhoo d Arrivals (DA CA) Based on DACA Recipien ts’ U nlawful A ttempts to P urchase a F irearm U nder 18 U.S.C. 922(g)(5) Page: 2 that the program “confers no substantive right, immigration status or pathway to citizenship, as only Congress, acting through its legislative authority, can confer these rights.” 4 This was furth er reinforced with the promulgation of the DACA regulations. 5 Under 18 U.S.C. 922(g)(5), it is unlawful for any person who “ is illegally or unlawfully in the United States” to possess or receive firearms. The B ureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has defined an “alien illegally or unlawfully in the United States” at 27 CFR 478.11 to be any alien who is “ not in valid immigrant, n onimmigra nt or parole s tatus.” 6 Per 18 U.S.C. 922(g)(5) and ATF regulation, aliens granted DACA are not in valid imm igrant, nonimmigrant, or parole status, the refore it is illegal for DA CA recipients to possess o r receive firearms. 7 Per 8 CFR 236.22(b), requests “ for deferred actio n may be grante d only if U SCIS determin es in its sole discreti on ” that the requestor m eets each of the threshol d criteria and merits a fa vorable exercise of d iscretion. S imilarly, p er 8 CFR 236.23(d), USCIS reta ins broad discr etion to te rminate a DACA grant and may do so at any time in its discretion. This discretionary authority, in conjunction with EO 14161, requires that USCIS vet and screen all DACA requestors to the maximum degree possib le to ensure that aliens wh o are granted DACA merit a favorable exercise of discretion. Further, d iscretion must be appropriately exercised to ensure that DACA gr ants are properly terminated w hen a DACA recipient en gages in certain unlawful practices, such as the unlawful attempt to purchase a firearm under 18 U.S.C. 922(g)(5). Guidance The terminatio n of a DACA grant must comp ly with the Ad ministrativ e Procedu re Act (APA), which requires that agency actions not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 8 Additionally, USCIS mu st comply with D ACA reg ulations at 8 CFR sections 236.21- 236.25, which require notice and an opportunity to respond befo re an alien’s DACA grant is te rminated, unless the DACA recipient is convicted of a nationa l security - related 4 See 2012 Napolitano M emo entitled Exercising Pros ecutorial Discretion with Respect to Ind ividuals Who Came to the United States as Children. 5 The DACA Final Rule was publishe d August 30, 2022, and went into effect on Oct ober 31, 2022, t o the e xtent permitted by court orders. The DACA Fin al Rule codifie d the Ju ne 15, 2012, DACA guida nce set forth by Secretary Napolitano. See Deferred Act ion for Chil dhood Arriva ls, 87 FR 53152 (Au g. 30, 2022); see also 8 CFR 236.21 - 236.25. 6 27 CFR 478.11 def ines an “[a]lien illegally or unlawfully in the United States” as aliens “who are not in valid immigrant, nonimmigrant or paro le status. The term includes any alien (a) Who unlawfully entered the United States without i nspect ion an d authori zati on by an immig ration office r and who has not been pa roled i nto t he Unit ed Stat es under sec tion 212(d)(5) of t he Immi gration a nd Nati onalit y Act (INA); (b) Who i s a no nimmig rant an d whose authoriz ed peri od of st ay has expire d or wh o has vi olated t he term s of the noni mmigra nt cat egory in whic h he or s he was admi tted; (c) Par oled un der INA sectio n 212(d)(5) wh ose aut horize d period of par ole has expire d or wh ose pa role status ha s been terminat ed; o r (d) Un der an order of depor tati on, exclu sion, o r remova l, or under a n orde r to depa rt the United States voluntarily, wh ether or not he or she has left the United States.” 7 See also United States v. Arrieta, 862 F.3d 512, 515 (5th Cir. 2017) (because DAC A did not cha nge the alie n's immigration status, the ind ictment charging a violation of s ection 922(g)(5) was suffi cient); United States v. Lopez, 929 F.3d 783, 7 86 - 87 (6th Cir. 2019) (in noting that DACA recipient was an “alien illega lly or unlawfully in the United States for purposes o f section 922(g)(5)(A), ” the court distingu ished 8 U.S.C. 1611(b) (2 - 4), concerni ng speci fic publ ic benefit s for aliens who are “lawfully present,” and INA 212 (a)(9)(B)(ii), c oncerni ng “unl awful p resenc e” for inadmissibility purpos es). 8 See 5 U.S.C. 551 - 559, 701 - 706.

PM-602-0191: Termination of Considera tion of Defe rred Action fo r Childhoo d Arrivals (DA CA) Based on DACA Recipien ts’ U nlawful A ttempts to P urchase a F irearm U nder 18 U.S.C. 922(g)(5) Page: 3 offense involving conduct described i n INA 212 (a)(3)(B)(iii), (iv), or INA 237 (a)(4)(A)(i), or an egregious public safety offense. Compliance with regulations, by issuing a NOIT and consistently applying the standards fo r DACA termin ations, bo lsters the g overnment’s position tha t it is not abusing its discre tion or acting in an arbitra ry or capricious mann er. E ffective immed iately, US CIS will complete the follow ing post - adju dicative actions to ensu re that DACA is properly termin ated when DACA recipient s engage in certain un lawful acts. In general, USCIS o fficers should consider any attempt by a DACA recipient to unlawfully purchase a firearm to be a significant negative dis cretionary factor. Subject to the single exception below, when USCIS beco mes aware, via notification from U.S. Immigra tion and Cu stoms Enforcemen t (ICE) or an y other mean s including the results o f security s creening an d vetting, that a DACA recipie nt attempte d to unlawfully purchase a firearm, U SCIS will issue a N OIT citing the unlawful att empt to purch ase a firear m und er 18 U.S.C. 922(g)(5) as a significant negative discretionar y factor. Further, in cases where I CE has detained the alien due to a determinat ion that the alien poses a national security or public safety risk, the details surrounding the detention should be cited in the NOIT along with the date the alien was taken into custody. Issuance of the NOIT must comply with 8 CFR sections 236.21- 236.25, which requires notice and an opportunity to respond before the alien’s DACA grant is terminate d. Once the alien has had an opportunity to respond, and if the alien has failed to provide sufficient and persuasiv e evidence to overcome the grounds for termination outlined in the NOIT, USCIS may issu e a Notice o f Termination. The only exc eption to this NOIT require ment is th at USCIS may te rminate a gr ant of DACA without a NOIT and an opportunity to respond if the DACA recipient is convicte d of a nation al security -related offense involving conduct described in INA 212 (a)(3)(B)(ii i), (iv), or INA 237 (a)(4)(A)(i), or an egregious pub lic safety offense. If U SCIS term inates a DACA grant without a NOIT and an opportunity to respond, USCIS will provide the alien with notice o f the term ination. 9 All aliens whose DACA grants are terminated, including terminations due to evidence indicative of an unlawful attemp t to purchase a firearm und er 18 U.S.C. 922(g)(5), m ust be expeditiously referred to ICE (RTI) 10 or any other appropriate federal law enforce ment agency for appropriate action consistent with the restrictions on information use at 8 CFR 236.23(e). 11 ICE must be notified if an alien already in ICE custody has had his or her DACA grant terminated. Aliens whose DACA grants are terminated an d whom ICE declines to pursue, should be issued a notice to appear (NTA) according to current agency policy and consistent with restrictions on information use at 8 CFR 236.23(c)(2) and 8 CFR 236.23(e). 12 9 See 8 CFR 236.2 3(d)(1). 10 Consistent with the cur ren t Memora ndum of Agre ement (MOA) bet ween USCIS and ICE. This MOA establish es procedures for the USCIS referral of national security, public safety, and immigration fra ud cases to ICE. 11 See 8 CFR 236. 23(e)(1) (prohibiting the use of information contained in a DACA request for the purpose of in itiating immigration enforcement proceed ings against the requestor, unless DHS is initiating immigration enforcement proceedi ngs due to a c riminal of fense, f raud, a thre at to nat ional sec urity, o r public safe ty conce rns). 12 See Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, PM - 602 - 018 7, issued Februar y 28, 2025.

PM-602-0191: Termination of Considera tion of Defe rred Action fo r Childhoo d Arrivals (DA CA) Based on DACA Recipien ts’ U nlawful A ttempts to P urchase a F irearm U nder 18 U.S.C. 922(g)(5) Page: 4 Immigration courts do not have jurisdiction to review the termination of a DACA grant. Thus, NTAs issued b y USCIS following the issuanc e of a Notic e of Termin ation should c ite all app licable grounds of removability, including the “Present without Admission or Parole” (PWAP) charge pursuant to INA 212(a)(6)(A)(i), if applicable, and that the alien no longer has a valid grant of DACA. Implementa tion USCIS will up date its Standard Operating P roced ures within 14 days of the issuance of this guidance. Use This policy memorandum is intended solely for the guidance of USCIS personnel in the performance of their offi cial duties, but it doe s not remove th eir discre tion in making adjudicato ry decisions. It may not be relied upon to create any right or benefit, substantive or procedural, enforceable under law or by any alien, individual, or other party in removal proceedings, in litigation w ith the Unite d States, o r in any other form or man ner. Additional Consider ations DACA is a form of enforceme nt discre tion not to p ursue the remo val of certa in aliens for a limited period. Even if the thr eshold DA CA criteria at 8 C FR 236. 22(b) are met, U SCIS has the discretion to assess the alien’s circ umstances and to weigh both positive and negative factors in the exercise of discretion d uring the adj udication of DACA requests to determine that any facto r specific to an alien makes deferred action inappropriate. 13 USCIS also ha s discretiona ry author ity to termina te a previously approved DACA request at any time, whereby DACA requestors generally have an opportunity to address the cited grounds and discretionary reasons for termination in response to a NOIT. 14 USCIS believes that the national security, public safety, and program integrity benefits th at will result fr om this guidanc e are valuable and outweigh any potential reliance interests 15 or other impact s DACA requestors, or others, affected by this guidan ce might cla im. 13 See 8 CFR 236.2 2(c). 14 See 8 CFR 236.2 3(d)(1). 15 DACA recipients can claim no reliance interest in a ttempting to illegally possess or receive fir earms. And as case law has dem onstrat ed, DAC A reci pients s hould be awa re that t o do so is ill egal a nd doin g so ha s the pot ential to have significant negativ e co nsequences on a DACA recip ient’s ability to remain in the United States. See supra FN1. See also USCIS DACA FAQ #6 which provides notice th at the prohibition at 18 U.S.C. 922(g)(5) applies to DACA recipients (“ Note: It is a federal crime for an alien who is “illegally or unlawfu lly in the United States,” among others, to ship or transport in inte rstate o r foreig n commerce, or po ssess in o r affect ing commerc e, any fi rearm or ammunit ion, or to receive any firearm or a mmuniti on whi ch has been shi pped or transp orted i n inters tate or forei gn comme rce. S ee 18 U.S.C. 92 2(g)(5) (A). This prohibition applies to DA CA recipients. ”), available at https://www.uscis.go v/humanitarian/consid eration - of - deferred - action - for - childho od - arrivals - daca/fre quentl y - asked - questions (last updated J an. 24, 2025).