By Lily S. Axelrod
Trump has promised to end Deferred Action for Childhood Arrivals (DACA), a program allowing hundreds of thousands of young people without immigration status to come out of the shadows and apply for work permits and drivers licenses.
Because DACA was based on an “executive action” and not a law by Congress or regulation by an executive agency, Trump can change or abolish it as easily as Obama created it. This makes the program much more vulnerable than other types of immigration relief, such as employment-based visas or lawful permanent residence, which require action by Congress to eliminate or make major changes.
We don’t know exactly what President Trump is going to do, and nobody has a crystal ball. No one can promise that “DACA is definitely safe and won’t change” or “DACA is going to end immediately and everyone is going to be rounded up and deported.” The reality will likely be somewhere in between. Trump has given us an ominous signal by appointing Kris Kobach, author of unconstitutional state immigration laws like Arizona’s SB1070 and Alabama’s HB56, to his transition team for immigration issues. However, he has not yet announced when, or how, he could make changes to the program.
What are Trump’s options to end DACA?
- Trump may keep DACA, for now, as a bargaining chip. If Trump is intent on prioritizing large changes to our immigration system, he will need cooperation from moderate Republicans and at least some Democrats in Congress. If he and his advisors are thinking strategically, they may decide not to make any immediate changes to DACA, and keep it as a pressure point in the larger negotiation. If this happens, USCIS could continue to accept new DACA applications and renewals. It’s still possible that, if Congress passes common-sense immigration reform, it could include a path to lawful permanent residence for DACA beneficiaries.
- Trump may allow current DACA beneficiaries to renew, but end new applications. Under this scenario, current DACA beneficiaries could continue to renew their status indefinitely, like TPS.
- Trump may “phase out” DACA. Trump could order USCIS to stop accepting new DACA applications and renewals as early as his first day in office. If this happens, people who currently have DACA could continue to remain and work lawfully until their expiration date.
- Trump may “repeal” DACA immediately. Trump could try to declare that all existing DACA grants are invalid, and that employment authorization documents issued under DACA are not valid. Though he may technically have the authority to do this, it is unclear how he could implement it.
In any of the above scenarios, Trump may direct Immigration & Customs Enforcement to use the database of DACA beneficiaries to target people for deportation. This is the scenario that our clients and friends most deeply fear. It is impossible to say how likely this is, although any major targeting of over 700,000 DACA beneficiaries would be extremely expensive and highly unpopular. DACA beneficiaries are politically organized and enjoy broad-based support from their neighbors. Employers and community leaders are also likely to complain loudly.
Instead of an indiscriminate “round up”, Trump’s ICE may instead focus on those with criminal convictions and prior deportation orders, as Obama has. While many of us fear mass raids and detention, it would be less expensive and dramatic for the administration to simply mail people notices to appear in immigration court for deportation hearings.
Immigration courts are extremely backlogged and will likely become even more so if Trump escalates enforcement action before funding to the court system catches up. So even an attempt to deport large numbers of DACA beneficiaries would be slow and expensive, and would leave plenty of time for political organizing and media advocacy to intervene.
DACA’s strength has never been its weak and temporary legal protection – it’s the bravery of young people coming out of the shadows to stand up for themselves and their communities.
What should I do if I already have DACA?
Consult with a reputable immigration attorney about your options. Many DACA beneficiaries are eligible for other forms of relief that Trump cannot immediately repeal, such as Special Immigrant Juvenile Status, U visas for victims of crime, VAWA relief for survivors of domestic violence, or sponsorship by a family member with status.
If your DACA will soon expire, consult with a reputable immigration attorney about whether you should apply to renew your status. A good immigration lawyer will analyze your immigration history, any criminal history, and the risks and benefits of applying for renewal. Understand that because processing takes several months, your renewal will probably not be approved before January 20. Your application may be denied or returned, and USCIS may keep your application fee. Because attorneys do not have a crystal ball, you must make a very personal decision about what DACA means to you, and how much risk you are willing to accept.
What should I do if I am eligible for DACA but have not yet applied?
Consult with a reputable immigration attorney about the risks and benefits of applying now. If you have never submitted any immigration applications before, if you have ever been arrested, or if you have been in immigration court proceedings before, coming forward now could be particularly risky. An attorney can also tell you if there are other paths available to you, such as Temporary Protected Status, Special Immigrant Juvenile Status, U visas for victims of crime, VAWA relief for survivors of domestic violence, or sponsorship by a family member with status.
What about getting my green card through travel on DACA Advance Parole?
DACA beneficiaries who entered the US without status, and who have a close relative such as a spouse who is US citizen or lawful permanent resident, currently have a “shortcut” to applying for a green card. Instead of going through the lengthy I-601A provisional unlawful presence waiver process, and then applying for an immigrant visa at the consulate abroad, some DACA beneficiaries are taking another route: filing for “advance parole” to leave the country and return. Upon their lawful return, they are eligible to adjust status and get their green cards through their US citizen spouses, within the United States.
People who have travelled and returned on Advance Parole already can and should continue their applications to adjust status in the United States. The process for applying for a green card has not changed, and there is nothing Trump can do to prevent someone who is eligible for a green card from applying. However, people who are eligible should apply as soon as possible, because an unfriendly Congress may make major changes to the green card process or eligibility requirements in the next few years – and because government filing fees are set to increase on December 23rd.
Current DACA beneficiaries who have already received Advance Parole and have not travelled yet should consider traveling and returning before January 20, then applying for their residency as soon as possible.
Current DACA beneficiaries who have not yet applied for Advance Parole should consider applying immediately. Regular Advance Parole applications are taking about two to three months, while emergency applications can be granted in days or weeks.
Anyone considering leaving the country, even on Advance Parole, should speak to an immigration attorney first, especially if they have ever had a criminal arrest or a prior immigration court case. There is always a risk of getting stuck outside the country; re-entering unlawfully can make you ineligible for other forms of immigration relief in the future. An attorney will help you evaluate and minimize risk.
What about expanded DACA and DAPA?
In November 2014, President Obama announced a planned expansion to the DACA program, making deferred action available to people who arrived before 2010 (instead of 2007), as well as the parents of US citizen and Lawful Permanent Resident children. These programs have never taken effect, and likely will never take effect. The Department of Justice under Obama has been defending these programs against a court challenge that went all the way to the Supreme Court this year, and is now back in the Fifth Circuit Court of Appeals. However, there will likely be no final Fifth Circuit decision before January, and a Trump administration is not likely to defend or implement this policy.
Any promise to file an application under DAPA or expanded DACA is a scam.
What does everyone need to do to prepare for the Trump administration, whether or not they have DACA?
Make a plan for what to do if you are detained. Keep track of all your important documents, such as birth certificates, passports, medical reports, criminal records, and immigration paperwork. Make sure a trusted family member has this information. If you have children or other relatives in your care, plan for someone to care for them, and if necessary, have a medical proxy or appropriate guardianship papers. Save money for bond, which can be well over $10,000 if you have any criminal record including a DUI.
Avoid arrest. Immigration officials can detain people who have been arrested by local police, even if criminal charges are never filed, or even if a judge dismisses charges. Arrests and convictions, even for misdemeanors, can make it harder to get bond from immigration detention, and can interfere with forms of relief in immigration court such as cancellation of removal, asylum, and permanent residency. Driving without a license or insurance is a red flag, and local police must share your data with Homeland Security when you are booked, even in so-called “sanctuary cities” and places with “Trust” policies.
If you have a problem with alcohol or drugs, seek help immediately. If you have been drinking, or if you do not have a license, get a ride or use public transportation or a service like Uber. It’s less expensive than bond, an attorney, or starting your life over after deportation.
Even though marijuana is now legal in many jurisdictions, possession is still a federal crime and can interfere with immigration status. Avoid all drugs. Understand that “paying a fine” or “doing probation” or “expunging your record” does not “make a case go away” for immigration purposes.
Avoid making false claims to US citizenship, for example, by using a fake passport or social security number to get a driver’s license.
If you are charged with a crime, make sure your attorney explains all the immigration consequences. The intersection of criminal and immigration law is a very complicated field which changes every day. A good criminal defense lawyer will ask about your current status, your criminal history, your immigration history, and your goals. She will often consult with an immigration attorney to evaluate the risks of any plea deal you consider. DO NOT plead guilty without understanding how your case could affect your future.
BEWARE OF NOTARIOS. In many Latin American countries, a “notario público” has legal training and can prepare legal documents. Here in the United States, however, a “public notary” can only check ID and witness signatures. They do NOT have any legal training, CANNOT give legal advice, and should NOT prepare immigration applications. Notarios often prey on people’s fear and ignorance, and give people false hope by filing poorly-prepared applications that at best are a waste of money, and at worst put people’s status and future in the country at risk. Sometimes they tell people there’s no hope, when there may actually be a solution. Before you consult anyone to help you, make sure that they are an attorney licensed to practice law. You can also check to see if they are registered with the American Immigration Lawyers Association, a professional group for immigration lawyers.
Beware of unscrupulous immigration attorneys and “dabblers.” Most immigration lawyers are hardworking, smart, compassionate people. However, there are a few who attempt to take advantage of people’s fear and ignorance. Be skeptical of anyone who asks you to pay a fee “so I’ll be your lawyer, just in case you ever get picked up.” If anyone is disrespectful to you and your family, or asks you to sign something you don’t understand, know that you can always walk away, demand a copy of your file, and find new representation. The best immigration attorneys practice exclusively immigration law, or immigration and one other related area such as criminal defense or family law. Beware of well-meaning attorneys who “dabble” in immigration by taking just a few cases. They may be great lawyers in their fields of expertise, but it they are not deeply knowledgeable and experienced in the subtleties of immigration law, they should refer immigration cases to others.
When deciding to consult an immigration lawyer, ask around with your family, community, church, school. Everyone’s case is different and no attorney can guarantee a particular outcome, but you can ask your contacts to recommend someone who treated them with dignity, explained all available options, warned about risks, and promptly returned their calls.