DACA: Some Venting and Some Solutions

DACA: Some Venting and Some Solutions

Of all the stupid, dirty, slimy, no-good, treasonous, villainous, putrid, double-crossing treachery, low life, vengeful, mean-spirited, spiteful, nasty, pin-headed, pathetic, weak, ugly, traitorous, short-sighted, weak-kneed, unbecoming, dumb, awful, smelly, vile, cruel, vicious, unjustifiable, illogical, unfriendly, basic, ungrateful, pig-nosed, trashy, small-minded, ham-handed, mercenary, ruinous, bad, fallacious, godawful, crummy, abominable, bad trip, lame, poor, slipshod, cruddy, wicked, corrupt, mean, discouraging, unpleasant, sulfurous, harsh, rotten, scandalous and just plain uncool things that Donald Trump has done, his elimination of DACA, after promising to treat the Dreamers with “great heart,” has to be the worst, the lowest, the meanest, the weakest and the dumbest thing his administration has done.  It is heartbreaking.  It is cruel.  It is terrible economic and social policy. It is done from a position of fear and weakness.  It will be painful to so many.  It is only wanted by the most extreme elements of society.  In other words, it has all the hallmarks of a Trump administration policy.

But for all the weakness and fear it represents, we know the Dreamers too well to think that this will send them into hiding.  Rather, we think that the perhaps apocryphal words of Japanese Admiral Yamamoto may be most appropriate.  He, according to legend, said upon the bombing of Pearl Harbor:  “I fear we have woken a sleeping giant and filled him with a terrible resolve.”  Dreamers forced President Obama to create DACA.  They forced Trump to agonize, back-pedal, shapeshift, contort and squirm over their fate.  The cause of the Dreamers is being taken up by all sectors of society.  No serious individual, no individual whose brain is not warped by hate and fear, believes that DACA holders should leave their homes in America.  Trouble is, of course, that many of those unserious individuals warped by hate and fear are in the White House, the Department of Justice and Congress.  But they will lose.  Because the Dreamers themselves are, as our Liana Montecinos said,  made of an “ironclad soul” and the cause of Dreamers is righteous and just.  And we have terrible resolve.

What can be done?  In short, a lot.  Let’s start with what the administration did.  The administration announced the “wind down of DACA.”  They are not revoking DACA for anyone right now.  That is the “great heart” portion.  The plan is to allow DACA classification and work authorization to expire when it naturally does.  There will be no opportunity for DACA recipients to renew these work authorization.  However, there are a couple of limited exceptions.  First, currently pending applications for DACA will be adjudicated as normal.  Second, anyone whose DACA expires between September 5, 2017 and March 4, 2018 must file for a renewal by October 5, 2017.  Approved renewals will be valid for two more years.  Advance parole applications for DACA holders will be denied.

Without the protection of DACA, DACA holders will be subject to the same sort of enforcement that the general undocumented population endures.  This means that they could be the subject of targeted raids, in which they are sought by ICE, or as “collateral” to other ICE enforcement operations.  “Collateral” as it relates to immigration refers to individuals who are not the subject of a raid but are encountered by ICE in the execution of a raid.  Such individuals actually make up the bulk of ICE arrests in enforcement operations.  For example, ICE announces that they are looking for gang members.  They enter a neighborhood looking for a specific person.  They don’t find that person, but they find his ex-girlfriend and her mother, who are undocumented.  ICE then arrests the girlfriend and the mother and announces success in their mission.  The girlfriend and the mother are what is termed “collateral.”

The danger levels of ICE enforcement can be broken down into two broad levels for two different groups of people.  The higher level of danger is for those with removal orders.  A lower level of danger is for those who do not have removal orders.  We will break down those risks and options by those two categories:

  • Individuals with removal orders

Individuals with removal orders are at the highest risk.  If a removal order has been entered against you, it means that ICE can remove you from the U.S. without going through any other sort of legal process.  It means that you are likely in a database maintained by ICE and should you come to the attention of ICE, they will likely detain you and begin to seek your removal from the U.S.  You do not have to be brought before an immigration judge before ICE can remove you.  Removal could follow in days or weeks after an encounter with ICE.

Individuals with removal orders should see an attorney right away.  There may be options to eliminate the removal order.  To eliminate a removal order entered by an immigration judge, you must go back to that judge and ask her to reopen your case.  As a general rule, you can only ask an immigration judge to reopen a case within 90 days of the entry of that removal order.  It is safe to say that no current DACA recipient has a removal order entered in the last 90 days.  There are limited exceptions to the 90 day limitation on reopening.  First, there is an exception to apply for asylum based upon changed circumstances in the country of nationality.  Second, there is an exception if ICE agrees to reopen the case and both parties ask the judge to reopen.  Third, a judge may reopen a case based upon her own motion.  We do not expect that ICE will be agreeing to lots of joint motions to reopen, but the first and third options are ones that need to be seriously explored by all DACA recipients.  A lawyer can review your personal circumstances and advise whether seeking reopening is a good idea for you.

  • Individuals without removal orders

If you do not have a removal order, you have more options than people with removal orders.  If encountered by ICE, ICE may still arrest and detain you.  However, subject to limited exceptions, in order to remove you, ICE would need to place you into removal proceedings before an immigration judge.  In those removal proceedings, you could be eligible to file applications for relief from removal.  In other words, by placing you into removal proceedings, ICE would give you the opportunity to obtain residence or other status from an immigration judge.  Of course, not everyone placed into removal proceedings will be eligible for relief from removal.  But many will be.  And, for those who may be eligible for relief, getting a hearing on your application for relief may take several years.  Here are some of the forms of relief that could be sought in removal proceedings:

  1. Asylum/ withholding of removal/ protection under the Convention Against Torture.  These forms of relief are available to those who fear or are likely to be persecuted in their home country due to a specific reason.  It also applies to individuals who may be tortured in their home country for any reason.  While simply being from a dangerous country is not a ground for asylum, the reality is that many Dreamers could present qualities that might subject them to persecution in their home countries.  It could be sexual orientation, religion, political activism, gender-based issues and many other personal circumstances that could give rise to a legitimate claim to asylum.
  2. Cancellation of removal is available to an individual: (1) who has resided in the U.S. for at least ten years; (2) who possesses good moral character; and (3) whose removal would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child.  For Dreamers with U.S. citizen family ties, there is a good chance that they will qualify for cancellation of removal.  The hardship standard is pretty high, however, so the case will need to be well-conceived and well-documented in order to win it.
  3. Cancellation of removal under the Violence Against Women Act is available to any individual (not just women!) who: (1)has been battered or subjected to extreme cruelty by a U.S. citizen or permanent resident spouse or parent; (2) has been physically present in the U.S. for a continuous period of at least three years immediately preceding the date of application; and (3) possesses good moral character.
  4. Adjustment of status.  Many DACA recipients are in stable and long-term loving relationships with U.S. citizens or permanent residents.  Sometimes, ICE enforcement acts as a relationship accelerator.  While one must never marry solely for immigration purposes, if a relationship was headed in that direction and immigration concerns alter the timetable, that is not inappropriate.  In addition, if an individual can become immediately eligible for a green card if their boyfriend finally got around to applying for citizenship, the threat of ICE enforcement may create urgency where there was none.
  5. Voluntary departure.  Well, this one does not sound like a win.  But, under certain circumstances, it may very well be.  If a person has a means of returning because she is eligible for an immigrant visa or a non-immigrant visa, voluntary departure may allow them to depart without suffering any penalty for undocumented time in the U.S.

Also, while not specifically relief, ICE, generally bears the burden of proving the deportability of an individual placed into removal proceedings.  There are many procedural rights that an individual in removal proceedings has which are often let slide during normal times.  These are not normal times.  Insistence upon ICE’s scrupulous adherence to the rules of seeking removal is more important than ever.    If ICE is going to put lots of people into deportation proceedings, it is inevitable that they will make many mistakes.  A skilled lawyer can ensure that your rights are preserved.

Opportunities outside of removal proceedings

  • Victims of crimes: U  and T visas.  U visas are available to individuals who have been the victim of a serious crime and have cooperated with the authorities in resolving it.  If you have been the victim of a violent crime in the U.S. and you reported it to the police, you may qualify for a U visa.  This is a pretty technical visa with lots of rules and issues and would require a lawyer to assist you.   T visas are available to individuals who have been the victim of human trafficking.  Like the U visa, this is a pretty technical visa with lots of rules and issues and would require a lawyer to assist you.  In addition, both U and T visas are available to individuals with removal orders.
  • Adjustment of status.  As discussed above, many DACA holders have U.S. citizen or resident boyfriends and girlfriends.  Maybe you have discussed marriage, but were not there yet or were just waiting for the right moment.  This may be the right moment.  The spouse of a U.S. citizen is able to seek residence immediately.  However, to seek it in the U.S., the foreign spouse must have lawfully entered the U.S.  If you entered without inspection, you likely can not receive your residence in the U.S. even if you are married to a U.S. citizen.  You may need to leave the U.S. and seek an immigrant visa in your home country.  To do that you will likely need a provisional waiver of inadmissibility, which, if granted, will allow you to depart the U.S. and return without being stuck outside the country for several years.  Both adjustment of status and a provisional waiver and an immigrant visa are solid means of regularizing your status.
  • Non-immigrant visas.  There are at least three temporary visas that could prove useful for DACA recipients.  These are the H, the L and the E.  They are all work based visas.  The H is the most common visa and is for an individual who is going to work for a U.S. company in a position that requires at least a bachelors degree in a specific field.  The applicant must, of course, possess such a degree.  There are many rules about the H, but it may be an option particularly for the employers of DACA holders faced with losing their employees.  The L visa is for an intracompany transferee.  For example, Microsoft Asia could send one of its managers or engineers from its Vietnam offices to work in the U.S.  This option would require the visa holder to go abroad and work abroad for a year before returning.  The E visa is for individuals who are starting their own companies and have invested significant funds into the U.S.  All three visas are complex and will require the assistance not only of an attorney but also an employer (except for the E, where you are your own boss, but still need a lawyer).
  • *** A note about unlawful presence*** For any of the options that require travel abroad to seek a visa, you must first ascertain whether any bar on return is triggered by departure from the U.S.  Individuals with more than 180 days of unlawful presence are ineligible to return to the U.S. for a period of three years.  One year of unlawful presence and the bar is ten years.  Now, unlawful presence is a very specifically defined term.  While many DACA recipients will have more than one year of unlawful presence, it is also possible that some will have no unlawful presence.  Or some will begin accruing unlawful presence once their DACA expires and may need to make quick decisions about whether to depart before the three or ten year bar kicks in.  There are waivers of the bars for unlawful presence.  The provisional waiver above can work for immigrant visas.  In addition, there is a liberal non-immigrant waiver that could assist those who can qualify for non-immigrant visas.

There may be other options.  This can not replace speaking to a qualified attorney.  These are desperate times and the need for skilled advocacy is at its greatest.  Benach Collopy lawyers have been fighting for Dreamers for over a decade and know that the battle is now upon us more clearly than it has ever been.  Dreamers made DACA happen and how you answer this moment will shape the future for immigrants in America.  We are proud to follow where you lead.


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