Under the new government guidelines, USCIS will no longer accept any new initial applications for deferred action under the moribund DACA program. Nevertheless, there is a small window of opportunity for current DACA recipients (whose deferral is due to expire before March 5, 2018) to file for a renewal of their work authorization and protection before October 5, 2017. However, not all individuals should necessarily rush to renew. There are certain categories of people who need to exercise extreme caution, including but not limited to those who have criminal histories as well as those who have prior removal orders. Generally speaking, there is an increased risk now that once a DACA renewal application is denied or expires, people with prior orders and criminal issues will be targeted, notwithstanding the rhetoric that the government is not interested in going after “dreamers.” The fact of the matter is that under President Trump’s executive orders, just who is considered a priority for removal has been considerably expanded to the point where specific classes have been subsumed. On the streets, there is essentially no longer any practical distinction between a dangerous criminal alien and someone who has just overstayed his/her visa.
Officially, USCIS has stated that in general, information furnished in connection with a DACA application will not be shared with Homeland Security’s enforcement arm. However, it also states “We will apply our policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of notices to appear. If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, we will not refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.” The policy guidance being referred to is a November 7, 2011 Memo numbered 602-0050. An analysis of the factors discussed in the memo is beyond the scope of this article. What is important is that DACA recipients who have been charged with criminal conduct understand how sensitive their cases may be and the prospects of being referred to ICE.
Egregious Public Safety Cases
According to the memo, “criminal aliens are a top immigration enforcement.” As such, USCIS is directed to refer all “egregious public safety cases” to ICE for further action. An egregious public safety case is defined as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following:
· Murder, rape, or sexual abuse of a minor as defined in section 101(a)(43)(A) of the Immigration and Nationality Act
· Illicit trafficking in firearms or destructive devices as defined in section 101(a)(43)(C) of the Immigration and Nationality Act
· Offenses relating to explosive materials or firearms as defined in section 101(a)(43)(E) of the Immigration and Nationality Act
· Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year as defined in section 101(a)(43)(F) of the Immigration and Nationality Act
· An offense relating to the demand for, or receipt of, ransom as defined in section 101(a)(43)(H) of the Immigration and Nationality Act
· An offense relating to child pornography as defined in section 101(a)(43)(I) of the Immigration and Nationality Act
· An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons as defined in section 101(a)(43)(K)(iii) of the Immigration and Nationality Act
· An offense relating to alien smuggling as described in section 101(a)(43)(N) of the Immigration and Nationality Act
· Human Rights Violators, known or suspected street gang members, or Interpol hits
· Re-entry after an order of exclusion, deportation or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal, has not been approved.
Note that under the guidelines, the individual does not need to be convicted of the charge. (Similarly, under Former DHS Secretary John Kelly’s February Enforcement memo, departmental personnel are directed to prioritize for removal aliens who not only have been convicted of offenses, but also those who have been charged as well as those who have committed acts which constitute chargeable criminal offenses.)
Non-Egregious Public Safety Cases
In addition to Egregious Public Safety Cases, there are also Non-Egregious Public Safety Criminal Cases to be wary of. This category would encompass criminal offenses not on the Egregious Public Safety list that would appear to render the alien inadmissible or deportable. What makes things particularly complicated for DACA recipients is that there are certain offenses that don’t necessarily disqualify an applicant from DACA but would render that person removable in the absence of DACA. Now that DACA is in its death throes, unless a solution can be worked out (which is supposedly in the works with President Trump’s backing), criminal issues need to be carefully explored and assessed before scrambling to renew.
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.