Attorney General Jeff Sessions announced the end of #DACA on September 5. DACA was never more than a band-aid. It's time to start talking about a cure. I preface this by saying don't let up advocacy and working with allies on the ground, and in the halls of Congress. Ultimately we need our leaders to act. But as a lawyer, I'm going to talk about legal options that can help at least some people.
First, here is how DACA will be killed (based on info we have now):
- If you have never filed for DACA, it's too late, as of today. You'll have to find another way to stay. There may be options depending on your particular history, so seek counsel.
- If you are filing for renewal of DACA, you have until Oct 5 to get your application in. You can only renew if your DACA expires on/before Mar 5, 2018. If your DACA expires after that, you will not be able to renew.
- There is a new standard: even DACA renewals accepted by USCIS will be adjudicated on a "case by case" basis. I expect this to mean more arbitrary denials. Just because you file it correctly doesn't mean you'll get the renewal.
- If granted, renewals will be for the full 2 year period.
- No more advance parole for DACA holders. This closes the ability to travel, reenter, and apply for a green card (for those familiar: no more "DACAbally." This applies to advance parole requests that are pending as of today, 5 Sep 2017.
- If you have DACA, and it's approved, it may not be terminated based on today's announcements, but it still can be terminated for any other reason.
Broadly, Dreamers fall into three categories:
- Kids who entered legally and overstayed or otherwise fell out of status.
- Kids who entered illegally and were not caught.
- Kids who entered illegally, were caught, and now have final orders of removal for various reasons.
Below, I give options that are not meant to be exhaustive, but only to shed light on options that may exist to get the brainstorming process going. Nothing can substitute for the tailored advice of a lawyer, and every case is different. But by knowing the kind of things we lawyers look for, you can collect the information we need to fashion a way for you to fight, stay, and win.
For those in category (1), options such as bona fide marriage to a US citizen spouse may work. Be sure it's a real marriage with intent to live together and establish a life together! And if DACA was obtained before age 18 years 6 months, or if some other status like TPS exists, employment-based immigration options may work, though this has to be very carefully planned and will require consular processing instead of green card filing inside the US.
It may also work for those in category (2) if the DACA holder has left the US and re-entered on advance parole (travel document/permiso para viajar)
Otherwise, those in all categories need to (while they still can) talk to a lawyer about potential asylum claims. By definition, if they have DACA, they will generally have been here for more than 1 year, which usually bars asylum - unless one can show changed country conditions, personal circumstances or other extraordinary reasons why asylum wasn't filed within 1 year of entry.
That means finding out what's going on with your family back home.
- Have any family members been threatened or targeted by a criminal gang?
- Did your religion change?
- Did you come out as gay, lesbian, or bisexual?
- Did you take part in political activities or make any statements your home country's government would harm you for?
- Did any of your family members make such statements, write a song, publish something?
- Do you belong to an ethnic or religious minority and your home country has begun targeting other members of your group?
- Do you have tattoos that might be misinterpreted by the police or a gang in your home country?
- Did you survive something terrible in your home country and couldn't file asylum because you couldn't bring yourself to talk about it?
- Do you have any family members who held any jobs or positions that a gang, extremist group, criminal enterprise, or the government itself might not like?
- Is there a new war or conflict going on that might affect you or your family/community/tribe?
These are the types of questions I'd want to ask you if you came to my office. Again - not exhaustive. Just something to start thinking about.
If you have an order of removal, collect all evidence from when you came into the US. If you don't have it, it may be possible (and even necessary, though risky) to file a Freedom of Information Act request (FOIA) to get copies of your immigration paperwork. A lawyer can then determine whether there were any legal deficiencies with that paperwork that might entitle you to have your deportation case reopened, canceling the deportation order, which means ICE would not be able to just pick you up and deport you.
If you have any pending criminal charges, get an immigration lawyer in addition to your defense attorney. It will be that much more important for the immigration consequences of the case to be considered.
If nothing works, it's time to think about options to lessen the chance that ICE picks you up.
Bottom line: now is the time to explore your options. You might not qualify right now for anything, but you might make yourself qualify by, say, finding an employer or learning something about new dangers back home. It's a lot harder to do this from inside a detention center. Right now you have your freedom, so use it. Fear kills your intelligence and your courage, and you'll need both to get through this. But you're not alone.
We are with you.
Contributing Editor: Hassan Ahmad
Hassan Ahmad has been practicing immigration law for 15 years. Fluent or proficient in 8 languages, he has advised nationals of 115 countries around the world. He was among the first on the scene as a volunteer airport lawyer at Washington-Dulles International Airport in the chaos after the travel ban this past January, and has since emerged as a strongly critical voice against the anti-immigrant policies pushed by the current administration. Hassan serves on numerous immigrant rights groups, and also was appointed by Virginia governor Terry McAuliffe to serve on the Virginia Asian Advisory Board. Follow him at @HMAesq.