Tag Archives: Deferred Action for Childhood Arrivals

DREAMers Face Uncertainty as Trump Administration Ends DACA and Leaves the Fight Up to a Divided Congress

On his campaign trail,  President Trump said he would “immediately terminate” DACA – the Deferred Action for Childhood Arrivals program introduced by the Obama Administration in June 2012.  Although it took several months to make a decision, the Trump Administration issued a memorandum on September 5, 2017, to end the program.

As of this date, no new, initial DACA applications will be accepted. Current DACA holders whose benefits expire on or before March 5, 2018, may file for a renewal, valid for 2 years, by October 5, 2017.

Almost 800,000 eligible, undocumented immigrants have received DACA as a temporary relief from removal, which includes work authorization valid for two years. Commonly known as “DREAMERs,” DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, have lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

DACA, however, has always been a temporary relief subject to rescission by a new Administration and which provided no path to lawful nonimmigrant status, permanent residence, or citizenship.

The DACA program was introduced by the Obama Administration in a  June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children. Critics viewed it as an unconstitutional use of power by the Executive Branch. Supporters saw it as an extension of prosecutorial discretion related to immigration enforcement priorities and necessary protection for undocumented immigrants who came to the United States as children and grew up in the country.

Federal court litigation ensued, in which a Texas-led coalition of 26 states  — including Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin — filed a lawsuit to stop the expansion of DACA and the introduction of a similar relief, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

In January 2017, after taking office, President Trump stated in an interview with ABC’s David Muir that a new policy would be issued within weeks, but that DACA recipients “shouldn’t be very worried.” He further commented: “I do have a big heart. We’re going to take care of everybody…But I will tell you, we’re looking at this, the whole immigration situation, we’re looking at it with great heart.”

Meanwhile, Attorney General Jeff Sessions continued to hold a hardline, calling DACA an “unconstitutional” act by Obama that has “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.” Sessions made the announcement in a September 5th news conference that the Trump Administration will phase out the DACA program.

On Twitter, following Sessions’ remarks, President Trump wrote, “Congress now has 6 months to legalize DACA (something the Obama administration was unable to do.) If they can’t, I will revisit this issue!”

In a written statement issued after Sessions’ announcement, Trump said, “I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

“We will resolve the DACA issue with heart and compassion — but through the lawful democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” Trump added.

There are at least four bills being discussed in Congress that provides protection to DREAMErs. They include the Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C; Recognizing America’s Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.; American Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.; and BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo. The first three creates a path for citizenship or permanent resident status if applicants meet certain requirements. The fourth seeks to codify the current DACA program into law and extend it for three years (but offers no path to permanent residence or citizenship), giving Congress more time to enact comprehensive immigration reform.

Trump gave Congress six months to fix the broken immigration system, but there are diametrically opposed viewpoints within the Senate and House: some call for tougher border security and immigration enforcement, while others seek protection from removal and a pathway to permanent residence and citizenship for certain undocumented immigrants who came to the U.S. as minors.

Congress has struggled for several years to resolve big legislative issues like immigration. As such, six months make a very short period to tackle the monumental problem of DACA holders losing protection from removal and authorization to work in the United States.

With a divided Congress, the fate of DREAMers is uncertain. In addition to filing for DACA renewal, if eligible, and tracking legislative action in Congress, DACA holders should consult an immigration attorney to discuss other more concrete, existing immigration options.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Trump Administration ends DACA: no new applications accepted as of September 5, 2017; renewal applications accepted up to October 5, 2017

On September 5, 2017, the Trump Administration announced the ending of Deferred Action for Childhood Arrivals (DACA) program – a temporary immigration relief that was introduced by the Obama Administration on June 15, 2012. In the Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) from DHS Acting Secretary Elaine Duke, and related FAQs, the Administration set forth the following steps to end the program:

Initial DACA (Form I-821D) applications and related applications for Employment Authorization Document (Form I-765): U.S. Citizenship & Immigration Services (USCIS) will adjudicate, on a case-by-case basis, properly filed initial DACA requests and associated applications for work authorization that were received by September 5, 2017. All initial DACA requests received after September 5 will be rejected.

DACA Renewal (Form I-821D) applications and related applications for Employment Authorization Document (Form I-765): USCIS will adjudicate, on a case-by-case basis, properly filed renewal DACA requests and associated applications for work authorization, from current DACA holders, that were received by September 5, 2017.

USCIS will also accept and adjudicate DACA renewal requests from current DACA holders whose benefits will expire on or before March 5, 2018, as long as they are received by October 5, 2017.

USCIS will reject all DACA renewal requests that do not fit this criteria, including all applications received after October 5, 2017.

Applications for Advance Parole (Travel Document) Based on DACA Grants: As of September 5, USCIS will not approve any new DACA-based applications for Advance Parole/travel document (Forms I-131). USCIS will administratively close all pending applications for advance parole and refund the filing fees.

The Department of Homeland Security (DHS) will generally honor the validity period for previously approved applications for Advance Parole, but the U.S. Customs & Border Protection (CBP) retains the authority to determine whether to admit persons who present themselves at a U.S. port of entry, as a matter of discretion. USCIS also retains authority to revoke or terminate an advance parole document at any time.

Why is the DACA program ending?

The DACA program was implemented by a June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children.

The Obama Administration planned to expand the DACA program in February 2015 and introduce the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in May 2015. These plans, however, were halted after a Texas-led coalition of 26 states filed a lawsuit in the U.S. District Court for the Southern District of Texas to stop the rollout.

On February 16, 2015, U.S. District Court Judge Andrew Hanen in Texas issued a temporary injunction blocking the implementation of the expanded DACA and the new DAPA.  On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allowed the  temporary injunction to stand.

In a June 29, 2017 letter to Attorney General Jeff Sessions, Texas and nine other states requested that DACA be phased out and DHS rescind the June 15, 2012 memorandum and not renew or issue any new DACA permits. They stated that if the Trump Administration agrees to rescind the June 15, 2012 DACA memorandum, they will voluntarily dismiss their lawsuit pending in the Southern District of Texas; otherwise, the complaint will be amended to challenge the existing DACA program.

During his election campaign, President Trump promised to end DACA. After Trump took office on January 20, then-Secretary of Homeland Security John Kelly rescinded the DAPA policy in June 2017. USCIS, however, continued to approve both initial and renewal DACA applications.

In its decision to end the DACA program, the Trump Administration considered the federal court rulings in ongoing litigation and the September 4, 2017 letter from the Attorney General to the DHS Acting Secretary, noting that DACA was an “unconstitutional exercise of authority by the Executive Branch” and calling for a wind-down process.

Who is affected?

Almost 800,000 persons have received DACA since the program began in June 2012. DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

How does the ending of the DACA program affect DACA holders? 

Employment Authorization 

DACA holders with a currently valid Employment Authorization Document (EAD) may continue to work lawfully in the United States. DHS does not plan to terminate or revoke any previous grants of DACA or work permits solely due to the ending of the program.

Advance Parole/Travel Authorization

DACA holders with a valid Advance Parole document, who are outside the United States, should be able to reenter the country. But Advance Parole has never guaranteed admission to the United States by the CBP, which maintains authority to decide whether to grant entry or deny it. The DHS may also revoke or terminate a grant of Advance Parole at any time, including when the DACA holder is outside the United States, which would prevent reentry to the country.

Immigration Enforcement

In the FAQs related to the September 5, 2017 memorandum ending DACA, the Trump Administration stated ,“[i]nformation provided to USCIS in DACA
requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance.

Explore Other Options

The DACA program provides authorized stay, work authorization, and temporary protection from removal (deportation), but no lawful nonimmigrant status or path to permanent residence. DACA recipients ought to be exploring other options to legalize their status, preferably before the program ends.

For example, if you are a DACA holder who is married to a U.S. citizen, your spouse may file an I-130 immigrant petition for you, and you may seek to obtain an immigrant visa at the U.S. Consulate or adjustment to permanent resident status within the United States in the immediate relatives category.

Adjusting to permanent resident status requires lawful admission to the United States. If you entered the country unlawfully, without presenting yourself for inspection, you normally must depart the country to apply for the immigrant visa overseas. Departure from the United States (without Advance Parole) triggers the 3/10 year unlawful presence bar.

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

You begin to accrue unlawful presence only after April 1, 1997 and once you turn age 18.

The 3/10 year bar to re-entry is triggered only if you leave the U.S. This does not mean you should never leave the U.S. to legalize your immigration status, but you should know there are risks to your departure. (Illegally re-entering or attempting to illegally re-enter the U.S. further complicates your case and triggers a permanent bar under certain circumstances.)

A person who is inadmissible due to the 3 year/10 year bar may not receive an immigrant visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver or I-601A waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act.  To be eligible for the waiver, you must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer “extreme hardship” if you are not granted the immigrant visa and admitted to the United States.

Consult an Immigration Attorney

The American Immigration Council issued a September 5, 2017 Practice Advisory describing other possible forms of relief, such as adjustment of status, U and T visas, asylum, and special immigrant juvenile status.

DACA holders must consult an experienced immigration attorney to discuss whether they are eligible for other immigration options that are more lasting than DACA and could lead to permanent resident status.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Antony Theobald

Applying for DACA? Here are the pros and cons

The Deferred Action for Childhood Arrivals (DACA) program doesn’t come close to the proposed DREAM Act, which offers undocumented immigrants, who came to the U.S. as children, a path to permanent residence or citizenship.

But DACA offers key benefits, including relief from removal and work permits for three years.

Qualified applicants must weigh the pros and cons before filing a DACA request.

 

Who Qualifies for DACA?

DACA was introduced in 2012 by then-DHS Secretary Janet Napolitano. You may apply for DACA by filing a Form I-821D along with your Form I-765 and documentation proving that you:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before the age of 16;
  • Have continuously resided in the United States since June 15, 2007;
  • Are at least 15 years old (unless you are in removal proceedings or have a final removal or voluntary departure order, in which case you may apply even if you are under 15);
  • Were physically present in the United States on June 15, 2012, and at the time of filing your DACA application with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The new DACA – which was expected to roll out on February 18 but was temporarily blocked by a federal court order – expands relief to those who:

  • Entered the United States before January 1, 2010, instead of before June 15, 2007;
  • Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
  • Are out of status as of November 20, 2014, rather than as of June 15, 2012
  • Are of any age (removes age limit requiring the person to be born since June 15, 1981, as long as the person entered the United States before age 16).

[UPDATE #1 : On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

What Are the Pros and Cons of Applying for DACA? 

PROS

Here are a few reasons to apply for DACA:

You get relief from removal and work authorization for three years

Previously, the deferred action period and work permits under DACA were issued in two-year renewable periods. As of November 25, 2014, these benefits are extended to three years and may be renewed as long as DACA continues.

Those who are currently in removal proceedings, have a final removal order, or have a voluntary departure order can also file for DACA. If you are in immigration detention or in the custody of Immigration & Customs Enforcement (ICE), you must first obtain your release as a DACA-qualified applicant. If you are released from custody, you may then file your DACA request with USCIS.

You are in authorized stay and are not accumulating unlawful presence

DACA is a form of authorized stay in the U.S. This means you are not accumulating unlawful presence during the deferred action period.

Normally, you begin accumulating unlawful presence in the U.S. once you turn 18, which may bar you from reentry to the U.S. for three or ten years (even if you otherwise qualify for an immigrant visa or green card). If you are unlawfully present in the U.S. for more than 180 days but less than 1 year, you are barred from re-entering the U.S. for three years. If the unlawful presence is 1 year or more, you are barred from re-entering the U.S. for 10 years.

If you came to the U.S. illegally, you must usually depart the U.S. to consular process your immigrant visa based on marriage to a U.S. citizen or permanent resident.  The 3-year/10-year bar kicks in once you depart the U.S. to attend your immigrant visa interview at the U.S. Consulate abroad. You would then need to obtain a waiver by showing your absence from the U.S would cause “extreme hardship” to your  U.S. citizen or permanent resident spouse. The waiver can be very difficult to get due to the strict requirements.

You will continue to accrue unlawful presence while your DACA request is pending, unless you are under 18 at the time of the request. If you are under 18 when you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 and the request is still pending. If you receive DACA, you will not accrue unlawful presence during the deferred action period.

Although deferred action does not give you lawful nonimmigrant status or immigrant status in the U.S, it helps protect you from accruing unlawful presence, which carries immigration penalties. Having authorized stay in the U.S. during the deferred action period can be especially beneficial if you were to later qualify for an immigrant visa.

You may travel outside the United States with advance parole

As a DACA recipient, you may apply for advance parole to leave the U.S. and return legally in DACA status. But you must first apply for advance parole by filing a Form I-131, Application for Travel Document.

USCIS will grant advance parole only if your travel abroad is for:

  • humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
  • educational purposes, such as semester-abroad programs and academic research, or;
  • employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Advance parole allows you to leave the U.S. for these purposes, but is not to be used for vacation or for general travel.

You receive social benefits and economic opportunities

In general, DACA recipients have more economic opportunities and are more socially integrated than those who do not qualify for DACA. With authorized stay and work permits, they find it easier to get a new job, open their first bank account and receive their first credit card.

Getting a driver’s license is a key benefit, especially for young immigrants. Currently, otherwise-eligible DACA recipients can apply for a driver’s license in every state except Nebraska.

Some state laws and college systems also allow certain students to pay in-state tuition, regardless of their immigration status.

A Star Tribune article states “For many who did apply, DACA has paid off. A national survey of DACA recipients last year found that almost 60 percent obtained a new job, 45 percent increased their earnings, about half opened their first bank account and 57 percent got a driver’s license.”

Your information, for the most part, will not be shared with enforcement agencies and will not be used against you 

USCIS has stated that it will not share information provided in a DACA request with ICE and U.S. Customs and Border Protection (CBP) for the purpose of removal proceedings against you or your family members, unless your case involves fraud, a criminal offense, a threat to public safety or national security, or other exceptional circumstances.

CONS

Here are a few drawbacks to consider when applying for DACA:

You have no path to permanent residence or citizenship in the U.S.

Past DREAM Act proposals includes a path to permanent residence and citizenship in the U.S. The DREAM Act is a legislation that must be passed by Congress to become law.

Meanwhile, DACA offers only work permits and relief from removal for a temporary period, but no path to lawful immigrant status. It is not new law.

Basically, DACA is a program or policy directing DHS on how to enforce immigration laws. Deferred action existed long before DACA, but DACA provides a formal process for qualified applications to seek this temporary relief. Because it was made available by an Obama Administration policy, it could easily end under a new U.S. President.

You have no lawful immigration status in the U.S. 

As a DACA grantee, you are considered lawfully present in the U.S., but you still have no lawful nonimmigrant or immigrant status.

Lawful immigration status refers to an immigration benefit such as lawful permanent residency (green card) or temporary visa classification, such as H-1B worker, B-1/B-2 visitor, or F-1 student.

Employers and state officials sometimes believe your lack of immigration status means you are unlawfully present. You might be wrongly denied a job, driver’s license, etc. because you have DACA status, instead of lawful immigration status. Although deferred action gives you authorized stay, your lack of immigration status can make it tougher for you to get social benefits and economic opportunities.

You have no right to travel and return to the U.S. based on DACA grant alone

DACA gives you no lawful status that allows you to travel abroad and return to the U.S. Instead, you must first pay the  filing fee for advance parole (travel document) and file the Form I-131 with USCIS. If you depart the U.S. without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Being approved for advance parole does not guarantee that you will be able to return to the U.S. At the port of entry, the Customs and Border Protection (CBP) officer may deny your entry if he finds you are “inadmissible” due to health or security reasons or other factors.

If you leave the U.S. after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure (even with advance parole) could mean you followed through with the deportation or removal.

Your opportunities to integrate socially and economically are temporary

Congressional Republicans seek to defund DACA. House Republicans attached amendments affecting the 2012 deferred action program to the DHS 2015 fiscal year funding bill. While the bill passed the House, it has been blocked by Senate Democrats.

DHS has also halted the rolling out of the expanded DACA on February 18, due to a federal district court order temporarily blocking its implementation. The new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would extend to certain parents of U.S. citizen and lawful permanent residents and was expected to kick off in May 2015, is also on hold.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

While applicants can continue to file and renew requests under the old DACA, the future of this program is uncertain. And the expanded DACA and new DAPA are being challenged even before kick off.

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

Your information may be shared with enforcement agencies and may be used against you in certain situations

USCIS may share the information in your DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

If USCIS denies your DACA request and your case involves a criminal offense, fraud, or a threat to national security or public safety (or exceptional circumstances), USCIS will refer your case to ICE. You may then face the risk of being removed from the U.S.

Persons who have been convicted of certain crimes or apprehended at the border or at ports of entry while trying to unlawfully enter the U.S. are considered to be enforcement priorities. Other enforcement priorities include persons suspected of terrorism, espionage, or abusing the visa or visa waiver programs. To a lesser extent, persons who have been issued a final removal order after January 1, 2014 are also enforcement priorities.

Consult an Experienced Immigration Attorney Before You Apply for DACA

Overall, the benefits and protections you get from applying for DACA outweigh the risks and limitations.

Before you request DACA, you should first consult a reputable attorney or get authorized legal assistance to help you weigh the pros and cons.

Beware of immigration services that are not authorized to offer legal advice. For help on how to avoid and report immigration scams, go to uscis.gov/avoid-scams or uscis.gov/es/eviteestafas

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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