End of the Road for DACA?

Immigration and You
By R. Mark Frey

As you may have heard, President Trump recently announced his decision to rescind the DACA program. The DACA program, formally known as Deferred Action for Childhood
Arrivals, came about when his predecessor, Barack Obama, issued an executive order on June 15, 2012 declaring his administration would defer action against certain foreign nationals without lawful status, and allow those individuals to apply for work authorization, while prioritizing the removal of other less savory characters, specifically those with serious criminal convictions. By all accounts, the program has been a resounding success, allowing approximately 800,000 individuals to come out of the shadows and lead productive lives – going to school, working, and contributing to their communities in various ways.

DACA is a program promulgated for a select group of individuals, specifically children brought into the United States while having no say about it. The eligibility requirements are stringent and selective for those applicants:

• Under the age of 31 and without lawful status on June 15, 2012;
• Came to the United States before reaching the age of 16;
• Continuously resided in the United States since June 15, 2007, up to the present time;
• Physically present in the United States on June 15, 2012 and at the time of filing an application for deferred action;
• Currently in school, graduated from high school or obtained a certificate of completion from high school, obtained a general education development (GED) certificate, or honorably discharged from the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a felony, a “significant” misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The outcry from some sectors was intense and highly critical of President Obama’s action with much of the criticism being leveled at what was perceived as a direct usurpation of Congress’ power to create the DACA program. But, as I’ve argued in past essays in Asian American Press, President Obama did indeed have the authority as head of the Executive Branch to prioritize certain enforcement actions (essentially a form of prosecutorial discretion based on a consideration of finite and limited resources for enforcement of our immigration laws), specifically targeting criminals with serious convictions rather than innocent children brought into the country without their say.

Now, with a new president, the DACA program has been rescinded with much fanfare. But, what exactly does it mean? Who is affected? Do all current DACA kids lose their work authorization immediately and hence become subject to removal? Can people still apply for DACA? What about renewals? Notwithstanding much speculation, there are some things we know with certainty about this order by President Trump:

• No first-time applications for Deferred Action will be accepted after September 5, 2017;
• Those currently holding DACA will be allowed to retain that status until their current work card expires. DACA work cards are issued for two-year periods.
• Current DACA recipients may apply to renew their DACA status if their work cards will expire between September 5, 2017 and March 5, 2018. However, they must file their applications on or before October 5, 2017 in order to be considered for renewal.
• Applications for advance parole allowing those with DACA status to leave the United States and return will no longer be accepted as of September 5, 2017. Furthermore, those advance parole applications pending as of that date will be administratively closed, with a refund of associated fees. Those granted advance parole before September 5, 2017, will presumably have authority to leave and return. “However, CBP [Customs and Border Patrol] will retain the authority it has always exercised in determining the admissibility of any person presenting at the border.”

And, what next? President Trump has stated he wants Congress to deal with the matter and pass legislation to help the DACA kids within the next 6 months. If not, he said he’ll revisit the matter, whatever that means. Members of Minnesota’s congressional delegation have now all weighed in on rescission of DACA with some condemning President Trump for ending the program and some applauding him for sending the matter to Congress for final resolution. And, what type of legislation? A stand-alone bill benefitting DACA kids or one laden with extras seeking to leverage more concessions on immigration issues of concern to many? Financing the border wall, perhaps? Hopefully, Congress will act quickly and decisively on this important matter affecting so many innocents, but when it comes to immigration reform in recent years, Congress hasn’t had a very good track record. Just imagine how communities across this great nation could benefit from the contributions of DACA kids, many of whom are college-educated and/or serving honorably in our military as well as involved in other laudable activities – especially with an impending labor shortage as the baby boomers leave the labor force for retirement.

Even more recently, New York and 14 other states, as well as the District of Columbia, filed a federal lawsuit in the Eastern District of New York questioning the legality of President Trump’s action. (Minnesota Attorney General, Lori Swanson, has expressed interest in having Minnesota join the litigation.)

Although I’m hopeful Congress will do the right thing, I remain somewhat skeptical. I fear the DACA kids will be used as fodder by the Trump administration as it seeks to leverage its agenda, one that doesn’t seem particularly concerned with common folks and their needs, notwithstanding the populist rhetoric. Stay tuned? It seems many in Washington, D.C. look at this as a reality show, all without consequence. Sadly, these maneuverings impact people’s lives, sometimes to the point of whether they live or die.

R. Mark Frey is a St. Paul, Minnesota attorney who has practiced immigration law exclusively for more than 25 years with an emphasis on asylum, family and marriage-based immigration, naturalization, removal defense, appeals, H-1B visas, and religious workers.