The recent arrest and continued detention of Daniel Medina, a young man who was granted DACA status, has stirred a lot of fear and paranoia within the undocumented community. Many DACA holders are understandably afraid, especially in light of the recent ICE raids that have occurred within the last few weeks, that they too may be targeted notwithstanding their “protected status” under DACA. According to recent statistics released by ICE, most of the individuals apprehended were convicted felons, some of them gang members and drug traffickers-which, if true, naturally makes the arrest of Mr. Medina even more striking. Was his arrest an anomaly or harbinger of things to come, especially if DACA is terminated by President Trump in the future?
As of now, the original DACA is still operative, and recipients who have DACA are in effect, not targets of removal. However, it is crucial to understand that while DACA affords a veneer of protection, it does not grant legal status or even immunity from deportation. Technically, DACA is a form of deferred action in which the government is not actively pursuing removal against a person who is without status. Under certain circumstances, DHS may revoke an individual’s DACA status, or an individual may, through certain conduct, become ineligible to renew his/her status. Among the many eligibility requirements, a clean record is among the most fundamental. Absent “extraordinary circumstances,” an individual may not be granted DACA if he/she has been convicted of
•· A felony offense
•· A significant misdemeanor offense; or
•· Three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct
•· The applicant is otherwise deemed to pose a threat to national security or public safety.
As is evident, the guidelines cover a wide swath of behavior that could result in revocation or non-renewal, which could then lead to an arrest and instigation of removal proceedings. In some cases, an individual does not necessarily have to be convicted, as a request for DACA is not limited to convictions. In fact, an individual’s entire arrest history will be evaluated, as well as other circumstances and background information. “Threat to national security and public safety” are extremely amorphous terms subject to interpretation. Under current guidelines and policy, this may include
•· Gang affiliations
•· Forcible, violent behavior towards another person
•· Forced or threatened sexual contact
In Mr. Medina’s case, the government is arguing that he is a gang member, and hence, poses a threat to public safety.
Given the uncertainty of DACA’s future and recent executive order regarding interior public safety, it is conceivable that “Dreamers” along with other large segments of the undocumented population who don’t have violent criminal convictions may be at increased risk in the near future.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.