Yesterday, under President Trump’s direction, Attorney General Jeff Sessions publicly announced that the Deferred Action for Childhood Arrivals program, otherwise known as “DACA”, was legally untenable and therefore being phased out and ultimately terminated. Acting DHS Secretary Elaine Duke’s September 5, 2017 Memorandum effectively rescinds the June 2012 memorandum establishing DACA and implements a “winding down” period. Therefore, it is critically important to understand that while the program is being cancelled-unless President Trump changes his mind-some aspects of it will continue up until March 6, 2018. Make no mistake: this policy reversal is unquestionably a serious and grave development; the status and employability of hundreds of thousands of young people will be jeopardized. At the same time, however, we should not let the hysteria cloud the facts. Yesterday was the death knell of DACA. It does not mean that everybody who had DACA status on September 5, 2017 suddenly lost his or her protection and will now be deported. The issue is much more complicated than that.
What The New Policy Is Now
According to the September 5, 2017 Memorandum and USCIS Frequently Asked Questions regarding the Rescission of DACA, here is what the government has made clear:
· Current DACA recipients will be allowed to retain their deferred action status and work authorization until they expire, unless terminated or revoked
· USCIS will no longer accept I-821D Initial Applications for DACA
· However, USCIS will continue to process-“on an individual, case-by-case basis”-all pending initial and renewal applications that have already been filed
· Furthermore, USCIS will accept and process renewal applications until October 5, 2017, for those DACA status and work permits expire between September 5, 2017 and March 5, 2018
· USCIS will no longer accept or process any applications for DACA Advance Parole; applicants who have pending I-131 Advance Parole applications in the pipeline will presumably be refunded their filing fees.
Things To Be Aware Of
· While those who have DACA status will be permitted to retain their status and work authorization, DHS retains the authority to terminate or revoke DACA status. Since DACA is discretionary in nature, there is considerable leeway for the government to tighten its standards in terms of whom it deems deferred action is appropriate.
· Generally, information provided to USCIS in connection with DACA applications will not be “proactively provided” to the enforcement branches of DHS. However, this is provided that the applicant does not pose a risk to national security or public safety, or meet the criteria for issuance of a Notice To Appear as laid out in previous government guidance.
· DACA recipients with already approved Advance Parole authorization that is still valid will presumably retain the permission to travel until it expires. However, the government has made clear that CBP retains its powers to determine admissibility at the border. Furthermore, USCIS still has the authority to revoke or terminate advance parole at any time; this could happen, for example, while the individual is already outside the US traveling on his/her advance parole document.
Things To Consider
Given the uncertainty of how things will play out, DACA recipients need to be cautious while assessing their options. Those who currently have DACA but have, in the interim, traveled without permission or been charged with any criminal offense should explore the legal ramifications with an immigration attorney before rushing to file a renewal application. Furthermore, now is not the time to bemoan the sunset of the program. The media is already doing that. Rather, it would behoove DACA recipients to investigate what other forms of relief they may possibly qualify for. Some individuals may now be eligible to apply for permanent residence through marriage, or some family or employment-based application whose priority date has or may soon become current.
For more information on what options may be available as a DACA recipient, please contact our office.