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DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

Tough Talk on Immigration May Hurt Republicans

President Obama’s report card will hardly show high marks when it comes to immigration. Even though he supported comprehensive immigration reform and the Dream Act, he has so far been unsuccessful in convincing Congress to do the same. Under his watch, deportations reached a record high of 400,000 per year, although there are signs that these numbers are going down after a policy change encouraging prosecutorial discretion in immigration enforcement last year.

While President Obama asks for five more years to fix the broken immigration system, the Republican candidates have been busy showing how serious they are when it comes to immigration by taking a general hard-line stance.

Former Massachusetts Governor Mitt Romney opposes the Dream Act and any measure that acts as a “magnet” of amnesty, such as in-state tuition for undocumented immigrants.

Romney also supports a national identification card system which, in combination with a national E-verify system, would lay the groundwork for “self-deportation”, i.e. when people decide to go back to their home countries because they don’t have the legal documentation to allow them to work in the United States.

At the debate in Arizona recently, Romney expressed that the draconian law that the state has been known for – which would have allowed the police to check the immigration status of anyone suspected of being an illegal immigrant – is a model law worthy of being copied by other states. He added that he would lift the current administration’s legal challenges to the law on his first day in office. The law’s author, Kris Kobach, is his adviser on immigration.

Former Pennsylvania Senator Rick Santorum similarly has a stern approach to immigration. He wants to step up employer enforcement and supports the deportation of undocumented workers. Like Romney, he wants the U.S.-Mexico border finished. At the Arizona debate, he declared support for the measures taken by the state in combating illegal immigration.

Santorum has alluded to the experience of his parents as Italian immigrants in explaining his position on legal immigration and has described an amnesty program as false compassion.

Romney and Santorum, who both support a mass deportation policy, have criticized Former House Speaker Newt Gingrich for his moderate approach to illegal immigration.

Gingrich has advocated for a humane stance toward undocumented immigrants who have been in the United States for a very long time. He proposes a middle ground between amnesty and deportation in the form of a legalization procedure that would give legal status to the undocumented but not lead to U.S. citizenship.

He has also said that he supports “half” of the Dream Act, i.e. children of illegal immigrants can become U.S. citizens after serving in the military.
Texas Representative Ron Paul, who wants to distinguish himself as the civil libertarian among the candidates, opposes amnesty and instead supports legal immigration reform and a system that grants beneficial status to the undocumented as opposed to deportation.

While he does not believe in a fence, Paul wants U.S. troops abroad recalled so that they can be stationed at the US-Mexico border. He has also called for an end to birthright citizenship and making English the official language of the U.S.

The GOP candidates know that it is already crunch time and they have drawn their lines on immigration issues.

Some Republican strategists, however, have expressed concern that the candidates’ tough talk may alienate the fast-growing Hispanic population and harm the party in the long run. Although their firm stance on immigration may please their conservative base, the candidates might be overlooking the immigrant electorate, particularly the Hispanic population whose vote may prove crucial this coming November.

Senators Urge Obama to Grant Relief to DREAM Act Students

Twenty-two U.S. Democratic senators recently wrote a letter to President Obama asking him to take executive action in light of the DREAM Act’s failure in the Senate four months ago.

The Senators, headed by Majority Leader Harry Reid of Nevada, urged the President to defer immigration enforcement proceedings for students who may benefit from the DREAM Act. Under the proposal, these students must meet requirements necessary to be eligible for cancellation of removal or a stay of removal under the DREAM Act.

The letter, dated April 13, 2011, reminded the President that he may exercise prosecutorial discretion in light of the government’s law enforcement priorities and limited resources. The Senators also noted that both the Bush and Obama administrations have granted deferred action to a number of students on a case-by-case basis.

In asking for deferred action for eligible students, the Senators called the President out on his position at his last State of the Union Address, where he asked Congress to “stop expelling talented, responsible people … who could be further enriching this nation”.

The senators said that they would also support other measures short of granting deferred action on all DREAM Act students, such as establishing a formal process for applying for deferred action, creating a reporting and tracking mechanism for DREAM Act cases, and granting deferred action as early as possible in each individual case.

It may be remembered that last year, the House of Representatives passed the DREAM Act (less commonly known as the Development, Relief, and Education for Alien Minors Act). It garnered the majority support of 55 votes at the Senate but was unsuccessful in overcoming a Republican filibuster.

Deferred action is a type of relief granted in the exercise of prosecutorial discretion not to pursue the removal or deportation of an alien for a specific period of time. It is a purely administrative act which may not be reviewed by courts.

While it does not confer immigration status, deferred action prevents the immigration authorities from seeking removal during the period of effectivity and makes the alien eligible for work authorization.

The USCIS grants deferred action on a case-by-case basis. Years ago, I was involved as an attorney in securing deferred departure status for hundreds of nurses – most of them from the Philippines – who were facing deportation for failing their licensure exams or changing employers without authorization. After several meetings with the INS Commissioner and other top INS officials, we obtained an agreement giving the nurses deferred departure status in 6-month increments up to a maximum of 3 years, and they were restored to lawful status after passing their licensure exams.

The USCIS has allowed deferred action for Haitian earthquake victims and foreign academic students impacted by Hurricane Katrina. It also grants deferred action in U visa cases which involve substantial physical or mental abuse.

It is estimated that 65,000 undocumented students finish high school each year. However, because they lack immigration status, many of these students are not able to attend college, and even when they do, they are unable to find work after graduation. The DREAM Act aims to address their plight by giving them a path to permanent resident status.

Passage of the DREAM Act by Congress is the humanitarian response to the hardship faced by these blameless immigrant students. Failing that and in the interim, deferred action by the Obama administration is a commendable alternative.

Senate to Vote on DREAM Act

Senate Majority Leader Harry Reid announced on September 14 that the DREAM Act (Development Relief and Education for Alien Minors Act) will be brought to the Senate floor for a vote next week. It will be attached as an amendment to the Defense Authorization bill.

There is a strong bipartisan support for the bill. The last time the bill came to a vote in the Senate was 2007. Ten Republican senators voted for it.

The bill has been introduced in various forms several times in the U.S. Congress since 2001. It was included in the Comprehensive Immigration Reform Act of 2006, which was passed by the Senate, and the Comprehensive Immigration Reform Act of 2007.

If the bill passes the Senate it will go to a conference committee reconciliation and then to both House and Senate for a final vote.

The bill would allow certain undocumented students to adjust their status to that of a conditional permanent resident for six years.

To be eligible for benefits under the bill, the student must have entered the U.S. before the age of 16 and physically present for a continuous period of not less than 5 years immediately preceding the enactment. The student must be less than 35 years old when the law is enacted.

He must also have been enrolled in college or earned a high school diploma or GED certificate. He must be of good moral character.

As a conditional resident he will be eligible to obtain a driver’s license, attend college as an in-state resident, work legally, obtain a social security number, and travel outside the U.S.

To remove the condition the student would have to either 1) earn a degree from a community college; or 2) complete at least two years of a bachelor’s degree; or 3) serve in the U.S. military for at least two years.

According to an analysis made by the Migration Policy Institute, 726,000 undocumented young adults would be eligible for conditional permanent resident status and that approximately 114,000 would be eligible for permanent resident status after six years.

Supporters of the bill have argued that these students were brought to the U.S. by their parents when they were young and therefore they should not be held accountable for their parents’ action.

Many of these students are smart and talented and have excelled in their school, in sports, and in the fields of arts, science and technology. Because of their undocumented immigration status they have been unable to pursue their dreams of going to college.

Legalizing them would strengthen our economic infrastructure as it would expand our educated workforce.

While some argue that passage of the DREAM Act would distract from comprehensive immigration reform, the fact that it has been so close to being passed before should be a good reason for our community to strongly support it and actively campaign for its immediate passage. We should take action now and urge our senators to vote for the bill.

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