On September 5, 2017, Atty. Gen. Jeff Sessions announced Deferred Action for Childhood Arrivals (DACA) is being rescinded or canceled. DHS also issued a memo and FAQ’s, further detailing the winding down of DACA. However, there is a six-month “grace period” until March 5, 2018, in order to give Congress the opportunity to pass legislation benefiting young people who were brought into the U.S. at an early age. Let us hope Congress finally passes the DREAM Act.
Under the DHS memo and FAQ’s, the following steps will be taken to end the DACA program:
People currently under DACA will be allowed to keep their work authorizations until they expire.
No new DACA applications will be accepted; only renewals in certain circumstances.
DACA recipients with work permits set to expire on or before March 5, 2018 may apply for a two-year “final” renewal, if the renewal is filed by October 5, 2017.
USCIS will not renew work authorizations for any application received after October 5, 2017, or if a DACA recipient’s work authorization will expire after March 5, 2018.
USCIS will not approve any DACA-based applications for advance parole (or permission to travel outside the U.S.). Any application for advance parole that has already been filed, but not acted upon by the USCIS, will be closed/rejected and the filing fee will be refunded.
Any advance parole already granted will be honored until its expiration date. However, even if a person has a currently – valid advance parole, the memo notes that “CBP retains the right to refuse admission to a person who presents themselves at a port of entry as a matter of discretion.” In other words, even if a person had been granted advance parole and travels outside the U.S. during its validity period, CBP at the airport could still possibly deny them reentry into the U.S.
In justifying the end to DACA, Atty. Gen. Sessions stated the original DACA program was an unconstitutional overreach of presidential authority by former President Obama. Under the Constitution, it is Congress which passes laws on immigration, not the president. Therefore, if there is to be any kind of relief for the Dreamers, it must be by way of a law passed by Congress, not through presidential executive action.
People who still have valid DACA and work authorization should not be targeted for arrest or removal, unless they violate the conditions of DACA, such as committing a crime or joining a gang, etc.
As for those whose DACA grants that have expired (or will eventually expire), DHS notes in a FAQ issued on September 5, 2017:
DACA never granted “any legal status,” to the recipients. They were still considered “unlawfully present in the U.S.”, with their removal deferred. When their DACA expires, “their removal will no longer be deferred and they will no longer be eligible for lawful employment.”
Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement, unless the person is considered to be an “enforcement priority,” such as a felon or terrorist, etc. However, this policy “may be modified, superseded, or rescinded at any time without notice…”
Now, it will be up to Congress to come up with legislation, such as the DREAM Act during the next six months, and people should be urging their senators and congressmen to work fast to pass such a law. And I know Congress is capable of quickly passing laws. For example, after the 9/11 terrorist attacks, Congress was able to enact the USA Patriot Act within two months. That law was hundreds of pages long. So they could certainly pass something as simple as the DREAM Act, especially since various forms of that proposal have been introduced for the last 15 years. And there was a new version introduced in July 2017.
Even with the end of DACA, there could still possibly be other forms of relief available to these young people. For example, I had featured young DACA recipients on my television show Citizen Pinoy, when DACA was originally introduced back in 2012. By sheer coincidence (and miracle), their green cards were APPROVED the same day Atty. Gen. Sessions announced the end to DACA, as they were derivative beneficiaries of their father’s employment-based petition.
There can also be other types of benefits or forms of relief available. However, I would strongly advise people to seek the advice of an attorney, who can evaluate your situation and determine if you are eligible for any other kind of immigration benefit and assist you in applying.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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