DACA is Terminated

Termination of the DACA Program

 

Like the slow progression of a hurricane expected to make landfall, the Trump Administration today finally confirmed what had been anticipated for a number of months:  the ‘rescission’ of the Deferred Action for Childhood Arrivals, or ‘DACA’, program.

So what does this actually mean?

It could be worse.

Let’s start here: What is (was) DACA?

As referenced above, the ‘D A’ in DACA stands for ‘Deferred Action’.  ‘Deferred Action’ is a legal term that references a longstanding immigration administrative tool that has been in use since the 1970s.  ‘Deferred Action’ simply means that the act of formally removing a person from the U.S. will be deferred for a specific period of time.  From a functional standpoint, it can also be viewed that a prosecutor from the U.S. Dept. of Justice uses his or her discretion to not act to remove a person from the U.S. because of sympathetic factors or in deference to other ‘deportation’ priorities.  This is known as ‘prosecutorial discretion’.

Understanding this helps us clarify what ‘Deferred Action’ does not do.  It does not grant any type of ‘status’ to the individual.  The person is not eligible for a ‘green card’, much less U.S. citizenship – and the person cannot sponsor anyone else for an immigration benefit.  The only thing ‘Deferred Action’ does is temporarily shield the person from an action to remove him or her from the U.S.; in addition, the individual who is granted ‘Deferred Action’ is also permitted to seek work authorization in accordance with Federal Regulations.

On June 15, 2012, then-President Obama ordered the Department of Homeland Security to consider young persons who had already been brought to the U.S. before January 1, 2010 and were at that time under the age of 16, to seek ‘Deferred Action’.  Since it was being used for a specific sector of young people living in the U.S. his program was initiated as ‘Deferred Action’ specifically for ‘Childhood Arrivals’, (or ‘DACA’). 

It is instructive to note that the DACA program was not the creation of a new immigration benefit – (Deferred Action has been around for nearly 40 years) – it was simply identifying a specific segment of society for whom these existing federal regulations would systematically apply.  Each individual, however, would still need to prove eligibility for deferred action on a case-by-case basis by filing a Form I-821D – ‘Application For Consideration of Deferred Action’ – with U.S. Citizenship & Immigration Services.  If the applicant met the qualifications and successfully passed a background check, the individual could receive ‘Deferred Action’ for a 2-year period.

In November of 2014, President Obama sought to expand the DACA program to extend the period of Deferred Action from 2 years to 3 years and include a greater number of persons who arrived before the age of 16.  (These persons are often referred to as ‘Dreamers’ – which alludes to an earlier Congressional Bill that offered similar benefits known as “The Dream Act”.)  Several state attorneys general brought suit in a Texas federal court to enjoin the DACA expansion.  Their success against the DACA expansion was solidified when the U.S. Supreme Court deadlocked on a 4-4 vote on whether or not President Obama’s actions exceeded his executive authority as President of the United States.  The original DACA program was not included in the Texas lawsuit – but what seemed to prompt today’s announcement was the threat among several state attorneys general to sue President Trump if he did not terminate the program on the grounds that DACA exceeded President Obama’s executive authority.

Tennessee’s Attorney General, Herb Slatery was initially among 10 attorneys general who threatened to sue President Trump if he did not terminate the program – but appropriately backed-out of the threat in recognition of the “human element” represented by the many DACA recipients who “have outstanding accomplishments and laudable ambitions”– and encouraged Tennessee Senators Lamar Alexander and Bob Corker to support a legislative solution to the issue.  It is hard to avoid noting the ironic argument that the Trump Administration would have had to make: that the President did not have executive authority to act on these types of immigration matters, when numerous and significant changes to our immigration system have been made exclusively by executive order by President Trump since January of this year. 

Interestingly, when President Obama initiated the DACA program, his stated purpose was to create a temporary program until Congress could act to pass legislation to give these same young people actual immigration benefits including legal status, work authorization or even perhaps lawful permanent residency.  Proposed bi-partisan legislation authored by Republican Lindsey Graham and Democrat Richard Durbin seeks to ‘legislate’ these benefits which – if successful, would be a more reliable means to accomplish the same ends.

 

What Does President Trump’s Memorandum Issued This Morning Actually Do?

First – it formally and immediately rescinds President Obama’s Memorandum of June 15, 2012, discussed above.  In other words, the DACA program is immediately terminated.

But there are many logistical issues to consider, so the program will have to ‘wind down’ in an ‘orderly fashion’.  Thus, here are some of the other logistical ramifications of the President’s decision:

Second – USCIS will continue to adjudicate new DACA applications that have already been filed.  If you have not already filed a new DACA application, it’s too late now.

Third – USCIS will continue to adjudicate DACA renewal applications that have already been filed – and – will actually continue to accept DACA applications for renewal up until October 5, 2017 for persons whose current DACA benefits expire before March 5, 2018.

Fourth – the U.S. Department of Homeland Security will not terminate or revoke Deferred Action benefits from those who currently have them.  Of course, once they expire, they will not be renewed.

Fifth – Advance Parole:  if you have been previously approved for advance parole (the permission to travel abroad and then be admitted back into the U.S.), the Department of Homeland Security/Customs & Border Protection – states that it will continue to honor the permission to return to the U.S., but reminds us that it can also revoke or terminate this at any time.  [I think this means ‘travel at your own risk’.]

Furthermore, it will not approve any new applications for advance parole and will close any applications for advance parole that are currently pending.

 The Long-View

So what happens next?

The political calculation appears to be to give Congress a deadline to pass legislation that confers benefits to young people in this similar situation.  There seems to be some momentum for this since the majority of Americans polled seem to support benefits for ‘Dreamers’.  The less optimistic view is that the DACA program was born out of the same predicament: the inability of Congress to pass a law addressing this issue forced President Obama to issue a Memorandum instead.  Is it possible for Republicans and Democrats, Senate and House of Representatives to cooperate to pass legislation that amounts to immigration reform?

I am reminded of the great hope and momentum that emerged from the U.S. Senate in the summer of 2013 when a strong majority of the Senate – both Republicans and Democrats - voted to enact a Comprehensive Immigration Reform Act, only to see it completely abandoned by the House of Representatives.  That was our last best hope to help fix our ailing immigration system.

President Trump has now created a new opportunity for our Senators and Congressional Representatives to work together to solve this compelling issue. 

Here’s hoping that history will not be repeated.

 

HS&D Immigration

 

Navigating Uncertain Times: Friday Roundup - February 24, 2017

Navigating Uncertain Times:  Friday Roundup

Friday February 24, 2017

 

Welcome to our new effort  to keep you informed of the quick-paced changes in immigration – real and implied – that are taking place in our world today.  This regular feature titled “Navigating Uncertain Times: Friday Roundup” will summarize new developments that have occurred within the preceding week and to provide concise explanations of how these changes might affect you .  We hope to be able to provide a helpful summary each Friday – or as often as may be warranted by the pace of new developments in immigration law and practice.

We will continue to provide timely and thoughtful blogs on various areas of interest in immigration law from time to time, but we welcome you to this first installment of this regular feature.

On February 17, 2017, the U.S. Dept. of Homeland Security Secretary, John Kelly, issued two (2) new Memoranda addressed to the various departments within Homeland Security such as ICE (Immigration & Customs Enforcement) and CBP (Customs & Border Protection) implementing the enforcement priorities expressed in the recent Executive Orders issued by President Trump.

Border Security Memo

The first Memo, relating to ‘Border Security’ has, among many various provisions, some fairly significant changes to the manner in which immigration laws are enforced, including:

·         An effort to detain nearly all foreign nationals apprehended entering into the U.S. without inspection, rather than getting biometric information, and allowing them to remain in the country while awaiting the opportunity for a hearing on whether they are entitled to stay.  There are currently not enough detention facilities to house the anticipated number subject to this provision.

·         An effort to hire 5,000 more border protection agents.  At this point, Dept. of Homeland Security has been unable to fill the already-existing requirement that there be 21,370 border protection agents.

·         An effort to expand the process of deportation known as ‘Expedited Removal’.  [For clarification, the term ‘deportation’ is commonly used to refer to the forced removal of persons from the country; but the precise legal technical term is known as ‘removal’].   Expedited Removal is, as the name implies, a procedure that removes the individual without the opportunity to appear before an immigration court or hire a lawyer.  The present practice is to use ‘Expedited Removal’ only for foreign individuals encountered within 100 miles from the border within 14 days of entry.  The new provision expands this to include anyone anywhere in the U.S. who cannot prove they have been here continuously for the previous 2 years.

·         Those apprehended at the border not subject to expedited removal would be returned to the ‘contiguous country’ from which they entered, (i.e., Mexico or Canada), regardless of their nationality.  They would then have formal ‘removal’ proceedings from a facility across the border in the neighboring contiguous country.

 

Interior Security Memo

This Memo relating to enforcement in the interior of the country (beyond the narrow regions along the nation’s boundaries) may be more significant in terms of the breadth of applicability.  Because of the finite amount of resources available to remove foreign nationals who are not presently here lawfully, past administrations have focused enforcement priorities on removing persons with criminal records. 

The ‘Interior Security Memo’ describes various classes of persons who are removal ‘priorities’, but concludes with one class that includes anyone who has ‘committed acts that constitute a chargeable criminal offense’ could include anyone who simply arrived in the U.S. without inspection.  This is a vast expansion of persons subject to removal.

It also supports the ‘fast-track’ removal process for the removal of persons included in these new ‘priorities’.

 

Look for additional explanation of these Memos in days to come – there are lots of issues to explore - but this should provide a brief introduction to some of the changes prompted by recent Executive Orders.   

Keep Calm and Carry...your Papers

With the release of President Trump’s most recent Executive Order asserting travel bans on certain immigrants from certain countries, there is understandably much confusion and anxiety over what this and his prior executive orders mean to immigrants now living in the United States and foreign nationals hoping to travel here.

Unraveling all of these issues will take some time.  Federal courts were quick to identify the legal and constitutional flaws in various parts of the orders and variously enjoined the Department of Homeland Security from taking actions to deport persons who arrived legally.  The Department of Homeland Security also properly conceded that the ban should not apply to persons who are lawful Permanent Residents of the United States.  But as the legal entanglements continue and the Department of State and the Department of Homeland Security figure out how to process these measures, what are noncitizens in the U.S. to do?

Keep Calm and Carry…your Papers

At this point, most of the immediate confusion is taking place at the borders and ports of entry into the U.S. and relates to persons outside of the U.S. trying to return or get into the U.S.  If you are already here, it would make sense to avoid traveling abroad until the Administration, the Courts and the Agencies can give us a clearer definition of exactly what type of enforcement will be taking place.  Of course, the January 27, 2017 Executive Order deals primarily with Refugees and visitors from 8 countries, but reports of others being stranded abroad in the confusion would indicate that there is still some uncertainty in international travel to and from the United States for noncitizens for now.

The January 25^th Executive Orders deal with internal enforcement of immigration laws; like the January 27^th Order, there is still some room for the Courts and the Administration to figure out to what extent these provisions are legally enforceable.  However, it is a general conclusion among the immigration bar that Immigration and Customs Enforcement is not restrained by the executive memoranda from the previous administration giving clear enforcement priorities on who should (or should not) be placed in removal proceedings.  Thus, in this heightened environment of enforcement, if you are a noncitizen of the U.S., it would be prudent to make sure that you carry your authorizing documents, (e.g., ‘green cards’, copies of visas, etc.) with you at all times.

Finally, keep in mind the long-view.  Although this is a period of great uncertainty, anxiety and disorientation for immigrants in the U.S. – irrespective of one’s legal status – we are also an exceptional democracy that has mechanisms and tools to give balance and, ultimately, greater certainty to the legal rights and constitutional protections that have evolved and continue to improve through the testing of these principles that have shaped our nation for the past two centuries.

So Keep Calm, Carry On…and Be Careful until we can get this sorted out.

Troubling The Waters...New Executive Orders Challenge The Way We Look At Immigration

Troubling the Waters…

If you are even remotely keeping up with the news, you are aware that the Trump Administration has started its term with a swarm of Executive Orders, tweets and announcements that affect the millions of immigrants presently in the U.S. and those dreaming of one day entering our country.

This is just the beginning of what we expect to be a long and turbulent period of changes to the immigration system as it now exists and challenges to the law, regulations, policies and memoranda that immigration attorneys use to try to help guide clients to secure the benefits that the law offers to them.

The early waves of the expected sea-change in immigration policy began with a series of Executive Orders issued on Wednesday, January 25, 2017.

We will endeavor to process these developments as soon as they occur so that we can help explain how these changes affect all of us.   We will therefore be regularly providing blogs at this site to help you remain fully informed as to the actual substantive actions that are taken, as well as some context for understanding their significance.

 

PART I – Executive Order of January 25, 2017:

 

 Executive Order 1:  “Enhancing Public Safety in the Interior of the United States”

The basic purpose of this Executive Order is to tighten the enforcement of those immigration laws relating to unlawful presence and to more aggressively pursue foreign nationals who are unlawfully present for removal. 

Here are the provisions intended to do this:

1.       Prioritize for removal noncitizens who are present in the U.S. and who are inadmissible on the basis of criminal, national security, fraud, misrepresentation and other related grounds of inadmissibility.

 

2.       Promulgate new regulations to collect penalties from noncitizens who are unlawfully present… as well as “those who facilitate their presence” in the U.S.

 

3.       Hire 10,000 additional Immigration & Customs Enforcement, (‘ICE’) Officers

 

 

4.       Resurrect a Program known as the ‘287(g)’ Program that authorize state and local law enforcement officials to investigate, apprehend and detain noncitizens who are unlawfully present in the U.S.

 

5.       Declare the authority of the Attorney General to take enforcement actions against ‘Sanctuary Cities’ by challenging their eligibility for certain federal grants.  This provision also directs the Department of Homeland Security to publicize any criminal acts committed by ‘aliens’ in those communities where they are not detained for ICE enforcement.

 

6.       Pressure other countries that do not accept their nationals who have been removed from the U.S. by suspension of visas from those countries; this also threatens these countries with their acceptance of removed nationals as a ‘condition precedent’ to diplomatic negotiations.

 

7.       Creation of an ‘office’ to assist victims of crimes perpetrated by ‘removable aliens’.

 

 

8.       Exclude non-U.S. citizens from the protections of the Privacy Act.

 

9.       Direct the U.S. Dept. of Homeland Security and the Attorney General to provide quarterly reports on the immigration status of all noncitizens incarcerated by the Bureau of Prisons, state and local prisons and jails.

 

These are the basic provisions of this Executive Order.  Please stay-tuned for a context-driven analysis of these provisions in the days ahead.