There is great fear and uncertainty surrounding the Trump administration’s September 5th, 2017, announcement that it is terminating the Deferred Action for Childhood Arrivals (“DACA”) program. Current DACA beneficiaries should understand this does not mean your deferred action status has been terminated at this time. To try to minimize the confusion, we have outlined below the main points contained in the administration’s announcement, and an analysis of how it will impact current beneficiaries. The second section reviews different paths which may be available to enable current DACA beneficiaries to gain legal status in the U.S., including status as Lawful Permanent Residents.
It is important to remember that in most instances, with limited exceptions discussed below, non-citizens present in the U.S. who are out of status and subject to deportation-removal are entitled to a hearing before an Immigration Judge, at which they will have the opportunity to be represented by counsel; to seek release under bond; and to apply for relief from deportation.
I. What does the Trump Administration’s Rescission of DACA Mean for Current Beneficiaries?
The Trump administration’s order does not immediately strip DACA recipients of their deferred action grants, or of their work authorizations, which are currently valid.
USCIS will adjudicate DACA renewal applications and applications for work authorizations which have been accepted by USCIS as of September 5th, 2017. Individuals granted deferred action, and whose benefits expire on or before March 5th, 2018, may apply to renew their DACA status and work authorization, provided their applications are accepted by USCIS on or before October 5th, 2017 – an extremely short deadline which is now less than one month away! These renewal applications must be prepared and submitted well before the deadline, as applications received after that date will be rejected.
DACA recipients whose employment authorizations expire after March 5th, 2018 will not be permitted to renew their status, and will revert to the unauthorized status they were in prior to being granted DACA.
USCIS will still adjudicate initial DACA applications and requests for work authorization that were accepted by USCIS as of September 5th, 2017; applications received after that deadline will be rejected.
DACA recipients with advance parole who are currently outside of the U.S. should be admitted to the U.S., provided they return before their advance parole expires. DACA recipients granted advance parole are advised not to travel outside the U.S.: there is always the possibility overly aggressive enforcement will result in the person being denied admission to the U.S. upon their attempt to return. USCIS will no longer approve advance parole requests made based upon status as a DACA recipient.
II. Paths to Legal Status
There is no simple, clear, and easy way to assess whether a current DACA recipient may be eligible to gain legal status or qualify for relief from deportation because these assessments turn on the facts of each person’s particular case. Factors which must be considered in order to determine eligibility for relief from deportation include: how the person initially entered the U.S.; whether the person traveled outside the U.S. after having been out of status, and was subsequently admitted or paroled back into the U.S.; whether the person has a parent, spouse or child who is a Lawful Permanent Resident or U.S. citizen; whether the person fears persecution or torture if deported to their homeland; and the nature of any criminal record the person may have. While a person may only have been eligible for DACA at the time they initially applied for that protection, today that same person may be eligible for different forms of relief or have an alternate pathway to legalization.
Outlined below are paths to legal status which may be available to DACA recipients or to others who are undocumented. While DACA is a valuable program, these other paths to legal status should be considered.
- Adjustment of Status. In certain instances, a person who is out of status may be able to adjust their status without leaving the U.S. and become a Lawful Permanent Resident. The person must have previously been admitted or paroled into the U.S. – including after traveling outside the U.S. pursuant to a grant of advance parole while a DACA beneficiary; or be the beneficiary of a petition for an immigrant visa filed prior to April 30th, 2001. Assuming they otherwise qualify, it may be possible to adjust status based upon a bona fide marriage to a U.S. citizen.
- Consular Processing of an immigrant visa, coupled with a provisional waiver of inadmissibility due to unlawful presence in the U.S.. The person must first show they are the beneficiary of an immediately available immigrant visa filed for them by their Lawful Permanent Resident (LPR) or U.S. citizen parent or spouse, and then carry their burden of proving their LPR or USC parent or spouse would suffer extreme hardship if they are denied the waiver. If the non-citizen is already in removal proceedings, this relief may still be available, but the process is more complicated.
- Cancellation of Removal as a non-permanent resident: once placed into deportation-removal proceedings, the non-citizen may apply for this relief. The person must demonstrate they have resided continuously in the U.S. for a minimum of ten years prior to being placed into removal proceedings; that their parent, spouse or child who is either an LPR or U.S. citizen would suffer exceptional and extremely unusual hardship if the person is deported; that they are a person of good moral character who merits this relief as a matter of discretion; and that they do not have a specified criminal conviction which would disqualify them from eligibility.
- Violence Against Women Act: This law enables certain spouses, children and parents of U.S. citizens or spousal and children Lawful Permanent Residents who have been subjected to assault, battery or extreme cruelty by the U.S. citizen or Lawful Permanent Resident family member to petition for legal status in the U.S., and to eventually apply to become Lawful Permanent Residents.
- Special Immigrant Juvenile Status: This protection is afforded to unmarried individuals, under the age of 21, after a juvenile or family court has made certain specified findings that the child’s reunification with one of his or her parent(s) is not viable due to prior abuse, neglect or abandonment.
- T and U Visas for Victims of Crimes: T visas are available to undocumented individuals who can demonstrate they: have been a victim of a severe form of trafficking in persons; are physically present in the U.S. or its territories on account of trafficking; have assisted in investigating and prosecuting trafficking, if over age 18; and would suffer extreme hardship or harm if removed from the U.S.. U visas are available to non-citizen victims of certain crimes; who have suffered substantial physical or mental abuse or injury as a result; and who have assisted law enforcement with investigating and prosecuting the perpetrators. If granted a T or U visa, the person may then be able to apply to adjust their status and become an LPR.
- Special Rule Cancellation of Removal through the Nicaraguan Adjustment and Central American Relief Act (NACARA). In certain instances, children who were under the age of 21 at the time a parent was granted status as a Lawful Permanent Resident through the NACARA, may themselves be eligible to adjust their status and become Lawful Permanent Residents.
- Asylum, Withholding and Deferral Under the Convention Against Torture: Asylum, and the related withholding and deferral, are available to individuals who have a well-founded fear of persecution in their home country based upon their race, religion, nationality, political opinion, or membership in a particular social group, or who fear torture, at the hands of government actors, or persons or organizations the government is unable or unwilling to control. A grant of asylum will enable the recipient to apply to adjust their status and become a Lawful Permanent Resident, while a grant of withholding or deferral permits the person to avoid deportation and remain in the safety of the U.S.
- “Undocumented” Person May In Fact be a U.S. Citizen by Operation of Law: In certain instances, a child born outside of the U.S. to a U.S. citizen parent or parents, may acquire citizenship at birth. Also, children born in the U.S., or U.S. territories, except those born to diplomats in the U.S., are U.S. citizens.
The above is a very general overview of potential avenues for gaining legal status in the United States, and its purpose is to help current DACA beneficiaries understand that even though their deferred action will soon expire, there is still reason for hope.
Current DACA beneficiaries, and other undocumented individuals, should not fear they will be seized by ICE, put on a plane and deported! All individuals in the U.S., regardless of their legal status, are entitled to constitutionally mandated due process protections. This means that before a person without legal status can actually be deported, the person must first be placed into deportation-removal proceedings before an immigration judge. During their deportation-removal proceedings, the person has the right to be represented by an attorney of their choice, and to apply for relief from deportation. They also have the right to appeal any deportation order to the Board of Immigration Appeals, and may seek further review in the Federal Courts. (Individuals who have already been ordered deported; who unlawfully re-entered the U.S. after having been physically deported; or who overstayed after having been admitted to the U.S. under the visa waiver program, generally, are subject to removal without appearing before an Immigration Judge. In certain limited instances, however, it may still be possible to apply to reopen or rescind an existing deportation-removal order, and then to apply for the relief outlined above.)
DACA beneficiaries should explore all avenues of relief which may be available to them. They must be careful to avoid being victimized by “notarios” or other unscrupulous charlatans who use the current climate of fear to defraud non-citizens. They should resist being pressured to consent to being deported and instead seek the assistance of reputable and experienced immigration attorneys. If a person cannot afford private counsel, they should check with their local bar association, or reputable not-for-profit organizations such as the American Immigration Lawyers Association; the Immigrant Defense Project, located in New York City; the Central American Refugee Center (CARECEN), located in Hempstead, New York; as well as Catholic Charities Immigrant Assistance Program, based in Amityville, New York, for assistance or referral to attorneys who are willing to provide free or low cost representation.