DACA Is In the News Again. We Talk About Why.
DACA has been in the news off and on for the past year. We talk about why this is and what is going on with it.
We noticed that this administration is pushing for The Supreme Court to make a decision about DACA so we thought we would talk about that today.
I’m Raluca Hanea and I’m an attorney who helps my clients with immigration and other matters. I’m here with my office manager, Nina Cleere.
Nina: Can you tell me what DACA is.
Raluca: DACA stands for Deferred Action for Childhood Arrivals. Basically, people who were brought into the United States illegally as children have any action toward deporting them deferred meaning at this time they will not be deported.
Nina: So we talk about in immigration that you have a “legal status” or you are “out of status” if your legal status expires, right? Raluca: Yes. Nina: So what status do DACA holders have?
Raluca: DACA holders are not here legally so they do not have a status. They can be deported at any time with no notice. This also means that if DACA were found unconstitutional and there was no other protection for them passed by Congress, deportation proceedings could start against them immediately.
Nina: So DACA is not a path to citizenship?
Nina: And if deportation proceedings started, what then?
Raluca: Anyone here under DACA may be deported. This might keep them from ever being able to enter the US again. This is hard to accept because many of the people registered under DACA see themselves as more American than a citizen of their country of birth.
Nina: Tell me how DACA started.
Raluca: President Obama signed an Executive Presidential Memorandum, which has the force of law, in June 2012. Besides making it so deportation doesn’t start against them it allows them to apply for a work permit called an Employment Authorization Document (or EAD). They must re-apply every two years for renewal.
Nina: And what has been happening with it lately?
Raluca: The Trump administration had been pushing to rescind the memorandum so that they can, we presume, deport anyone who is here under DACA. They did this on on September 5, 2017. However, due to District Court orders from New York and California, USCIS resumed accepting applications for renewals. They are not accepting applications from anyone who has not been granted DACA before only for renewals.
Nina: So, we’ve also heard about the Dream Act, what is that?
Raluca: DREAM stands for: “Development, Relief, and Education for Alien Minors Act” It is an act that has been proposed several times since 2001 but has failed to be passed. It would put people who came here illegally as children under a TPS (temporary protected status). This means they have a conditional status and then move to permanent residency and citizenship. Because both DACA and the DREAM Act discuss the same demographic of people, many often think they are the same thing but they are not. DACA just stops any deportation proceedings right now. The DREAM Act provides a way for the individuals to become legal. Many people refer to everyone under this umbrella as “Dreamers” and that may be where the confusion began.
Nina: How many people are here in the US under DACA
Raluca: As of January 2017, 740,000 people have registered through DACA.
Nina: So what does all this mean?
Raluca: Anyone who was approved for DACA before the rescission by Trump, is still eligible for the extensions until further notice but this could be withdrawn at any time.
Nina: So DACA has many other parts such as advance parole and what you need to do if you want to obtain a legal status, and we’re not going to address them today though we may in later lives. Let’s talk about the news this week. What is happening with DACA?
Raluca: This administration through the Justice Department is pushing for the Supreme Court to make a decision about DACA whose ending was stopped by an injunction in the 9th District Court which is in California.
Nina: So the 9th District Court hasn’t yet made a decision.
Raluca: No, they issued a temporary injunction. They required the government to keep processing renewals until a final decision on the merits of the case. Other courts have said they think DACA is unconstitutional but again, no court has made a final decision.
Nina: Why do you think that is?
Raluca: I’m not sure if they are trying to see what another court decides or it’s just taking a long time to write their decision with all the supporting case law. One of the issues may be that the Justice Department keeps entering new requests and appealing parts of the case and the Justices are dealing with those in a piece-meal way rather than being able to decide the whole thing. In the New York case final written arguments were due October 5, 2018 and oral arguments had not yet been scheduled.
Nina: So usually a party cannot appeal a decision when there hasn’t been a final order but the Justice Dept asked the Supreme Court to make a decision, right?
Raluca: Yes, that happened in January 2018 but the Supreme Court issued a denial in February 2018 to this request and said they must go to the Court of Appeals (which in CA is a more liberal court that they want to avoid). This is what the Justice Department is asking again, for the Supreme Court to force the Judge in the California case to make a decision so they can review it before they stop working in June.
Nina: It sounds like this might be a really scary time for DACA recipients.
Raluca: Yes, and that is one of the other issues that is being litigated at this time. The original DACA memorandum said that people who filed for this status would NOT have their information shared for enforcement purposes meaning no other agency could be given this information to then deport them. Trump’s administration wants to use this information to start deporting people. Basically, making DACA not only to have been a waste but a danger for everyone who signed up under it. Can you imagine, it’s almost like when they made jews register during WW2 and then used those registries to find them and put them in concentration camps. People tried to obtain a legal status and now Trump and the Justice Department want to use that against them.
Nina: Anything else?
Raluca: Yes, a DC court has rejected the government’s argument about why DACA should end, not once, but twice and looks like it may reinstate DACA fully. There is also current litigation with several states in Texas trying to get DACA thrown out completely.
Nina: So it sounds like a lot is still up in the air with DACA.
Raluca: Yes, it is. It would be highly unusual for the Supreme Court to make any decision right now. Most likely they will allow it all to go through the lower courts, then be appealed and then take an appeal from a higher court case that addresses most of the concerns in all the cases so that they don’t need to hear more than one. This could take at least another year if not longer for this process.
Nina: So what should people do who are in DACA?
Raluca: I highly recommend that people 1. Don’t put off renewing your DACA – as of right now you are able to do so but if you let it lapse you may not be able to renew. 2. Call our office and schedule a consultation, we may be able to find a legal basis for you to obtain a more permanent status where you can eventually become a citizen. If you leave the country, do so with Advanced Parole ONLY. If you do so without that, you may not be able to come back.
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Thank you for watching.