Deferred Action for Childhood Arrivals (DACA) is an administrative program that could end by executive order at any time. At this time, we do not know what the future of the DACA program holds. President Trump has pledged to end the DACA initiative. However, he has taken no such action.
Some organizations are advising people to refrain from applying for initial DACA benefits. Others may instruct their clients to reconsider filing to renew existing DACA benefits. Many organizations are advising that individuals with DACA should not travel on advance parole. These are decisions dependent on the individual’s circumstances in each case. Some factors to considered are:
USICS Can Disclose DACA Information to ICE and CBP
At this time, USCIS has stated that DACA information is protected from disclosure to ICE and CBP unless the DACA requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE. This means that potential DACA recipients must consider that immigration authorities may detain them and terminate their DACA if after receiving DACA:
· They are arrested or convicted for any criminal offense (including traffic offenses);
· They commit or admit to any criminal offense;
· They admit to fraud in connection with a government agency (such as use of a false social security number);
· They admit to being part of a gang now or in the past; or
· They are determined to pose a threat to public safety or national security
· USCIS changes its policy and begins prosecuting Dreamers
Travel on Advance Parole
While USCIS is still processing applications for advance parole based on an underlying DACA grant, we are advising our clients to carefully-weigh whether travel on advance parole is advisable. You SHOULD NOT travel with advance parole of any type if you have:
· previous criminal arrests or charges (even without a conviction);
· any type of criminal conviction (including either misdemeanors or felonies);
· any history of fraud related to a government agency (such as use of a false social security number); or
· been deported or been ordered deported from the United States before.
Cost and Processing
Given that we do not know if, when, or how DACA might end, there is a chance that an application fee will be wasted if DACA is rescinded before an application has been processed.
The DACA Community
The DACA population has many members of Congress have vowed to defend the DACA population and the program. As of September 30, 2016, USCIS had approved more than 750,000 initial DACA applications and more than 580,000 renewals since the agency began accepting DACA applications in 2012. Currently there is pending legislation (the BRIDGE Act) intended to replace DACA. However, the Act has not passed the Subcommittee on Immigration and Border Security and is not likely to pass.
Recent Events Leave Dreamers Wondering
Since taking office, President Trump and his Administration have made a number of confusing statements about the future of DACA that make it difficult to discern whether and when they intend to rescind DACA. On January 22, White House Chief of Staff Reince Priebus foreshadowed that President Trump did not have immediate plans to end DACA. Then on February 16, the President again promised to rescind DACA.
On June 15, 2017, Department of Homeland Security rescinded the Obama Administration’s memorandum expanding the DACA program and creating the DAPA program for certain parents of US citizens. Then on June 29, the Attorneys General of Texas and 9 other states (Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia) sent a letter to US Department of Justice (DOJ) threatening to bring an action in Federal Court to declare the DACA program unconstitutional unless the Department of Homeland Security (DHS) phases out the program. The letter states that the plaintiffs will voluntarily dismiss their lawsuit if DHS phases out the program by September 5.
Consulting an Experienced Attorney When Choosing to Pursue DACA
While there have always been inherent risks involved in applying for DACA, these risks are now heightened given the executive orders and memoranda issued by the new Trump administration that virtually strip all prosecutorial discretion from Department of Homeland Security employees. The preparation of a DACA application warrants an analysis about eligibility for other immigration benefits, including removal defenses in case your client’s DACA application is denied and the client is placed in removal proceedings.
KNOW YOUR RIGHTS
Everyone, regardless of their status, has constitutional rights before the immigration authorities.
· Don’t respond to the questions of an immigration agent or provide any personal information. They may continue to ask you in a forceful, harassing or intimidating manner. You still have the right to remain silent.
· If agents come to your home, ask that a search warrant be passed under your door or shown through a window. Do not open the door for them if they cannot show you a warrant signed by a judge. You lose certain rights by allowing agents in to your home.
· Do not sign any document that you do not understand. Ask to speak with an attorney and for a hearing in immigration court before signing away any of your rights.
· When possible, you should carry copies of proof you hold DACA, including photocopies of your work permit and the notice the government provided when it approved your DACA (a piece of paper titled “Form I-797C, Notice of Action”). Immigration officers are not supposed to arrest, detain, or deport you if you can prove you currently hold DACA, but it is not guaranteed.
About Our Firm
Litwin & Smith, San Francisco California Bay Area immigration attorneys have one compelling mission: Assist Investors, Employers, and Immigrants in obtaining their immigration goals. We have dedicated our careers to developing and maintaining expertise in immigration law and know how to assist immigrants to obtain legal status as they contribute to our nation’s diverse economy. We have successfully assisted our clients with their DACA and Advanced Parole filings.