As of February 2nd, 2017 there is a heightened concern surrounding the fate of DACA. Many people who stepped forward and trusted the U.S. government to treat them fairly applied for the DACA program. Now that Trump has been elected, the political landscape has shifted and along with it, the Executive Branch’s priorities. People have a right to be very concerned about the fate they or their relatives face under the DACA program. Nothing concrete has happened yet but anyone considering applying for DACA should be informed of the potential risks. The risks are potentially catastrophic such as deportation. One should really consult with a lawyer to have them examine their individual situation.
Before we move on to the current DACA situation here is a little background on the concept of Deferred Action. Deferred Action is basically a type of prosecutorial discretion. It is not a right or an official immigration benefit. However, it has been a practical benefit for thousands of people and their families, employers, friends and society as whole. Deferred action describes the choice by DHS to not target certain people for deportation. Deferred Action can be granted at any stage of the enforcement process. Normally we think of it as something people apply for before they are picked up and detained. However, it can currently be applied for even during or after removal proceedings. The USCIS and ICE are responsible for the bulk of the deferred action requests.
Surprisingly, deferred action has been around in some form for more than several decades. It once was more of a secret program reserved for attorneys familiar with the program. It was one form of prosecutorial discretion deemed appropriate. The reasons for prosecutorial discretion are usually humanitarian based.
It is vital to remember a couple of things especially now that President Trump will be taking office. First, deferred action does NOT confer a legal status. This is different from lawful presence. Second, Deferred Action is not legislation. It is revocable at any time. It provides only a tenuous safeguard or type of pseudo status, lacks many important legal criteria, provides no independent path to a green card or citizenship, and does not give permission to travel.
Except for the DACA program, traditional deferred action also lacks a form, a fee, or any guarantee that a person who requests it will be notified about its outcome or have the ability to appeal or challenge a decision to deny. In essence deferred action a is a short term protection from deportation. It also, as in DACA, allows someone to work in many cases.
DACA, announced in 2012, basically applies this Deferred Action concept to a category of young people. Under DACA, an individual must first satisfy certain criteria. The legal rationale is that because they were younger than 16 when they entered the country they could generally have been considered to have lacked the intent to break the immigration laws. They would have also have had to have lived in the U.S. continuously since a certain date and been physically present inside the United States on June 15, 2012. There also is an education requirement. An individual is disqualified from DACA if he or she has been convicted of certain crimes or otherwise deemed a threat to national security or public safety. USCIS adjudicates DACA requests on a case by case basis.
Risks of DACA
Often the worst case scenario has been a denial and cost of the application fee. However for a certain unknown, but probably very small, percentage of applicants with certain criminal backgrounds they have been referred to ICE and other negative consequences. However the general rule, absent criminal history, fraud, threats to national security information provided in a DACA application was not protected from disclosure to ICE and CPB for purposes of immigration enforcement. *
Now that Donald Trump has been elected President the inherent risks of DACA are Staring us all in the face. The conduct of his administration is unpredictable as to DACA. However, it does not look good at his point. There has always been a wariness of a Republican President’s effect on DACA. However, President Trump’s stances on immigration makes DACA even more vulnerable. If his openly hostile rhetoric is any indication there is definitely cause for alarm. We just don not know for certain what his administration is going to do.
Historically, the U.S. government has not created a program like DACA and subsequently decided to enforce immigration laws against that population. Think of it as sort of a concept of good faith and fair dealing, gentlemen’s agreement in essence. However, Trump is a new breed of President. We simply do not know what he will do.
On the bright side , those people who qualify for DACA would also normally fit the criteria for low priority targets for deportation due to the fact that they are not a threat to public safety and often have U.S. citizen or L.PR. family members.
Should I Apply for DACA while Trump is President?
Before applying for DACA relief you should exercise extreme caution. You should definitely speak to an attorney before you even think of applying for the first time. Renewals should be treated differently as well. Things are in a state of flux right now and it will be hard to predict what will happen. In addition, everyone’s case or situation is different. This blog post or any other on this site is as not intended as legal advice and should not be taken as such. *
*Leon Wildes, Patrick Taurel, and Shoba Sivaprasad Wadhia, Deferred Action: A Primer AILA Immigration Practice Pointers (2015)