Is DACA Truly Gone? What Now?

By Reeves Miller Zhang & Diza 

dreamstime_m_53035960As we all know, President Trump has announced that he will end the Deferred Action for Child Arrivals (commonly known as “DACA”) program in six-months. He has told Congress that he wants them to enact and send him legislation that will address the immigration status of those currently in the DACA program.  If Congress does decide to act, this will give them an opportunity to address the immigration issues of both the DACA recipients, their parents and others similarly situated.  Within the past few days, President Trump reached out to the leaders of the Democratic party to resolve (albeit temporarily) the looming budget and debt-ceiling concerns.  This action may empower the moderate Republicans and Democrats to work together toward a reasonable and fair resolution to the problem of the Dreamers and their families.

In the meantime, to review, Department of Homeland Security (DHS) issued a Memo with some guidelines as to what will happen in the immediate future.

Previously issued EADs and DACA grants will remain valid for their full validity period.

Pending (those already filed by September 5, 2017) initial requests for DACA and related EADs will be adjudicated.

Initial applications not filed by today will not be accepted after today.

Pending DACA renewals will be adjudicated.

Not-yet-filed DACA renewals will be accepted for filing until October 5, 2017.  Renewals can only be filed for those whose DACA grant will expire between September 5, 2017 and March 5, 2018.  No one knows how long the renewals will be granted for.

No new DACA-based advance parole applications will be approved.  All pending advance parole applications will be administratively closed and the filing fees will be refunded.

Previously approved advance paroles will be generally honored though DHS retains the authority to deny admission and/or revoke or terminate parole where it deems appropriate.

Recipients of DACA have varied immigration histories and issues.  Some had previously had no contact with Department of Homeland Security or Immigration Court.  Others were in the middle of removal proceedings which are now administratively closed (NOT terminated – just asleep).  Others have existing removal orders.  As DACA comes to a close, the effect on each of these groups will be different.  Even before DACA is completely ended, these different situations may impact how the recipients may be treated if they leave the U.S. on advance parole.  DACA recipients and all other non-citizens should remember that advance parole does not guarantee that they will be permitted to re-enter the United States.  Prior misrepresentations, criminal convictions, or even arrests may affect the reception they receive from CBP at the border.  For this reason, anyone with potential problems should always consult an experienced immigration attorney before they make plans to go out of the United States.

Many people did not apply for DACA because they believed they were not qualified due to prior criminal history and they did not want to bring themselves to the attention of DHS.  However, had they consulted with an immigration lawyer who is knowledgeable in “crimmigration”, they might have discovered that they were a good candidate for post-conviction relief.  They might also have learned that changes in California law had a positive effect on their immigration situation.  As DACA closes (or morphs into legislation), it is more important than ever to find out whether those with past criminal indiscretions are eligible for some form of relief.

When/if Congress turns its attention to immigration, many different factions are likely to speak up.  Those who wish to bring permanent relief to those who are out of status will be one voice.  Those who wish to dramatically change and restrict legal immigration will be another voice.  A final result may include compromises on both sides.  Those compromises may include the elimination of some categories of family immigration.  Brothers and sisters of United States citizens and married sons and daughters of United States citizens have long been considered to be on the “chopping block”.  United States citizens who have been considering filing petitions for family members in these categories should stop considering and actually file.  If Congress votes to end these categories, the chance will be gone.

Because immigration (and criminal) law is constantly changing, those who were previously told that they have no hope should contact a knowledgeable and experienced immigration lawyer to find out if that is still true.  What was not possible before may be possible now.  Consult with a lawyer an immigration lawyer and find out.  After all, President Trump reached out to the Democrats and they reached an agreement.  Who knows what can happen next?