The Future of DACA
The Deferred Action for Child Arrivals (DACA) program is under review by the Supreme Court. At issue is whether President Trump may terminate the program, as he wishes to do. I expect the Court will side with the president in a decision to be released next spring. What options will be available?
What is DACA?DACA is a program that President Obama introduced into law in the summer of 2012. For nearly 5 years, it allowed young people to apply for permission to work, and for a limited time permission to travel under advance parole,. Currently, only DACA renewals are allowed. The legal basis is "deferred action" which is a discretionary form of relief which has been used by US presidents for many years -- for example, President George H. W. Bush in 1989, in the aftermath of the June 1989 Tiananmen Square Massacre, created a program for Chinese students in the USA, to protect them from having to return to China. Deferred action offers temporary protection to people who would otherwise be vulnerable to deportation or removal. As part of this protection, DACA applicants are eligible to request permission to work. The renewable work permit allows access to a Social Security number and a state driver's license.
DACA does not confer a visa, or visa status, or "legal status" -- but it does make the person "lawfully present" in the United States. This is significant, as it thus protects the person's right to apply for certain classes of visas at US consulates abroad, including most importantly the "immigrant visa" for permanent residence, based on close family ties to a US citizen or permanent resident family member.
Since Mr. Trump took office, only DACA renewals have been allowed. Initial DACA applications have been discontinued. Travel permits are no longer offered. He has long made it clear that he disdains many of President Obama's foreign and domestic policies, and has no sympathy for rank-and-file immigrants. The absence of humanity and decency that runs throughout the current policies is unfortunate and unworthy of the world's greatest democracy. Mr. Trump seems utterly blind to the contributions made by undocumented persons to the nation's current economic success.
What is President Trump's position on DACA?Briefly, no surprise, Mr. Trump is opposed to DACA. His immigration policy is unfriendly to many people from Mexico, Central and South America who are present in the United States. His rhetoric is hostile and often uninformed and unreasonable. He demonstrates on a daily basis he has no familiarity with Latino culture nor with the US system of laws, the immigration laws included.
What next, if DACA is withdrawn?The US Supreme Court is reviewing a case, following oral argument in early November 2019. Commentators suggested the Court might be leaning toward allowing President Trump to terminate the DACA program. (As an aside, if he were impeached, the Vice President Mr. Mike Pence would succeed him and it is doubtful that he would change Mr. Trump's policies.)
What will termination of DACA mean to the approximately 700,000 individuals currently benefiting from DACA? Here are my thoughts:
* Removal proceedings will be begun shortly after termination.
* So it makes sense to consult with an experienced "deportation" lawyer, to explore options.
* One such option may be "Cancellation of Removal" which is a path to permanent residence -- reserved for persons in deportation or removal proceedings -- based on long-term presence in the United States, proof of "good moral character," close family ties to family members who are US citizens or permanent residence, and anticipated hardship if deported.
* Another, for some, may be marriage to a US citizen or permanent resident, in a carefully-planned, good-faith marriage and proof of a committed life together. For persons who received DACA prior to their 18th birthday -- or even as late as the 18th birthday plus 180 days -- this could avoid a costly, stressful additional step in the process, called the "provisional waiver." Others, who had already accumulated over 180 days of unlawful presence (that is, after their 18th birthday) before getting DACA, will need the "provisional waiver" (also called the "hardship waiver") to avoid a 10-year wait in Mexico.
* Asylum or a similar remedy, Withholding of Removal" may offer protection from deportation for persons who can show a "well-founded fear" of returning to their home country for fear of being targeted by because of their religious, political, ethnic, racial, or societal identity. As a word of caution, these individuals must be able to point to a very recent development -- perhaps within only the past 60 days! -- that is the basis for this heightened fear of persecution.
Conclusion - it's time to get a plan together!It is this writer's opinion that now is the time to start planning for the end of DACA. You must develop an "exit strategy." Talk with your family members -- both US citizens and permanent residents, and undocumented persons and DACA recipients alike.
Above all, you must contact an experienced immigration lawyer for guidance, on the best plan to follow, and how to make a successful case that will take you and your family across the finish line before things begin to unravel in Washington and throughout the country.