On Tuesday, the government announced the rescission of the DACA program after months of speculation and dread. While many have begun to do so already, DACA holders and those close to them should now begin to plan for the announced changes, but also know things are still not fully settled. Even though DHS has provided key details about how the rescission will be executed, The full effect of the rescission will depend on what happens in the coming months.
What we know so far:
1. DHS is no longer accepting new DACA applications after September 5th.
2. Those with DACA benefits expiring on or before March 5, 2018 can apply for a two-year extension until October 5, 2017.
3. Those with DACA benefits expiring after March 5, 2018 cannot apply for an extension.
4. Valid DACA Advance Parole documents may still be used, but USCIS will not issue any new ones. USCIS will close any pending applications for travel documents and refund the filing fees.
5. DHS has said that it will not actively pursue removal proceedings based on the expiration of DACA benefits- right now. Please read below for a more detailed explanation.
Will DACA holders be placed in removal proceedings when benefits expire?
DHS has said, "Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS' Notice to Appear guidance (www.uscis.gov/NTA). This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter."
While implying the expiration of DACA benefits alone should not trigger removal proceedings, this statement raises serious concerns beyond the qualification that it may change at any time. First, USCIS officials can place foreign nationals into removal proceedings, even without forwarding the information to ICE first (though ICE would prosecute the removal proceedings themselves.) Though technical, considering the statement comes from the agency overseeing both departments, this may be a deliberate omission, rather than an error.
More importantly, USCIS has indicated that it is reviewing its current guidance for placing people in removal proceedings, which was last issued in 2011. We do not know what the new guidance will be, but given the current administration it will almost certainly be stricter than the current version.
Therefore, when DACA holders' benefits begin expiring in March, 2018 they may be much more likely to be placed in removal proceedings than DHS' current response suggests.
Will there be a DREAM Act? If so, at what cost?
While we are opposed to the end of DACA, one potential positive is that this could be a catalyst to finally pass the DREAM Act. The DREAM Act was first introduced well before DACA, and would have given people with similar qualifications to DACA holders the opportunity to gain legal status and eventually lawful permanent residency. If the DREAM Act was passed in time, DACA holders could obtain status and work authorization before their current benefits expire.
While prior efforts to pass the DREAM Act have been unsuccessful, the rescission of DACA has pushed this issue to the forefront with greater support than before. Even President Trump has given his support for the DREAM Act- presenting the rescission of DACA as an opportunity to act, rather than the termination of immigration benefits for 800,000 people.
On the other hand, though the DREAM Act seems to have a very real chance of passing, it may be paired with harsh enforcement measures. For example, Congressman Tom Cotton, a harsh opponent of immigration has supported a DREAM Act, but only together with his "RAISE Act", which would dramatically reduce legal immigration for years to come. A longer analysis of the RAISE Act is available here.
Will a potential DREAM Act come at too great of a cost for immigration advocates to support? Will it be passed, but together with harsh measures harming others in immigrant communities? It remains to be seen, but the answers to these questions will ultimately determine the true effects of today's decision.
Bean + Lloyd, LLP is an immigration law firm in Oakland, California
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