The Trump Administration Ends DACA

Background

On June 5, 2017, Attorney General Jeff Sessions announced that the Trump Administration would be ending the Deferred Action for Childhood Arrivals (DACA) program.  On June 15, 2012, the Obama Administration effectuated an executive order that created the DACA program.  On September 4, 2017, Attorney General Sessions sent a letter to the Department of Homeland Security (DHS) stating that he determined that DACA was without proper statutory authority because it was effectuated through executive order that was meant to circumvent immigration laws. The very next day, AG Sessions announced that the Trump Administration would be terminating the program and rescind the June 15, 2012 memo.

What Does This Mean?

By rescinding DACA, AG Sessions terminated the program. He did instruct DHS, however, to continue to decide certain requests for DACA and associated applications. Below are the details of how AG Sessions instructed DHS to stop the program.

  • DHS will continue to decide properly filed DACA initial requests and EAD requests that have been accepted by DHS as of June 15, 2012.
    • This means that if your initial application for DACA was received by DHS by June 15, 2012, DHS will continue processing your application and EAD (work permit).
  • DHS will reject any initial DACA requests not received by June 15, 2017.
    • This means that unless DHS has received your initial DACA request by June 15. 2017, it will be rejected and returned to you.
  • If your DACA expires on or before March 5, 2018, DHS will continue to decide and receive all DACA renewal requests and EADs up until October 5, 2017.
    • This means that if your DACA expires on or before March 5, 2018 and you renew by October 5, 2017, DHS will still accept and decide your application and EAD request. If your current DACA expires after March 5, 2018, DHS will most likely not accept or renew you DACA request.
  • DHS will not terminate current DACA or revoke EADs.
    • This means that DACA is effect and will continue to be valid until the date on your EAD.
  • DHS will not approve any new Form I-131 applications for advance parole.
    • This means that DHS will administratively close all pending Form I-131 applications associated with the DACA program and will refund all fees. This also means that any currently approved Form I-131 applications for advance parole are still valid for the period granted.

Also, please remember that if your DACA has expired and it has been over a year since it was valid, if you reapply, your application will be treated as an initial (NOT renewal) DACA request.  At this time, DHS is not accepting any initial DACA requests.

It is always smart to contact an immigration attorney if you have questions about this new process.

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End of DACA?

End of DACA?

Today numerous major news networks were reporting that President Trump was set to announce by Friday that he was ending the Deferred Action for Childhood Arrivals (DACA). Former President Obama formed the DACA program through an executive order in 2012. The program allows certain people who were brought here as children illegally or overstayed their visas to obtain a work permit and avoid deportation based solely on their illegal status in the U.S. According to U.S. Citizenship and Immigration Services (USCIS) statistics, over 1.2 million people are currently covered under DACA.

Trump is set to allow DACA to lapse – essentially not renewing the program. Which means that the 1.2 million people who currently have DACA would be in peril. The end of DACA also creates other issues as now the Trump administration has information of the DACA recipients – where they work, live, and their families. Although Trump has claimed that he has a “big heart” for the young people that were granted DACA, it appears that his heart isn’t quite big enough. The fear is that the Trump administration will use all this information for nefarious purposes, such as detaining people and putting them in deportation proceedings.

If the DACA program ends, the only hope for the young people of DACA is the Dream Act. The Dream Act was reintroduced in the Senate and the House in July 2017. The bills are receiving bi-partisan support and would broaden the amount of people that would qualify for the program. This program would give recipients a path to citizenship, which is more than the DACA program provides now.

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SB4 BLOCKED BY FEDERAL JUDGE

SB4 Blocked

On August 30, 2017, a federal judge in Austin has temporarily blocked key provisions of the controversial bill SB4 which allows local law enforcement officers to question the immigration status of people they stop and punish local governments who don’t cooperate with federal immigration detainers.

In the 94-page ruling, the judge stated that the police officer upon making a stop is not required to ask about a person’s immigration status and that a person may not be arrested based solely on their immigration status. “If during a lawful detention or arrest an officer obtains information that a detained or arrested individual is undocumented he may not arrest the individual on this basis” said the judge. The police can’t act on a person’s status in order to arrest them, but they can share the information, at their choosing.

The judge further stated that law enforcement agencies do not have to honor every detainer. He ruled that it would be a violation of the person’s Fourth Amendment rights if every detainer was honored. He also halted the provision of the bill that prohibits “a pattern or practice that ‘materially limits’ the enforcement of immigration laws.”

Ultimately, the law is blocked temporarily until it is appealed or the case is completed. What this means for immigrants that the police can still ask about immigration status but the police can’t detain you or arrest your because of it. Furthermore, even if a person is arrested by the police, the police do not have to honor the detainer that is placed by ICE.

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Dream Act Introduced in the Senate

Dream Act of 2017 Introduced in the Senate

On July 20, 2017, two senators, one a democrat from Illinois (Durbin) and a Republican from South Carolina (Graham), introduced a new bill to protect and provide a path to citizenship to immigrants that were brought here as children. The legislation seeks to provide a path to citizenship and protection as a conditional resident for up to 8 years.  Requirements for the Dream Act of 2017 are similar to that of Deferred Action for Childhood Arrivals (DACA).

The bill outlines a three step process that would end with applicants applying for citizenship. The first step is Conditional Residency (CR) status. People who currently have DACA would automatically become Conditional Residents. This requirements for CR are more broad than that of DACA, making more people eligible for conditional residency. For example, under the proposed bill, there is no cap on age like that of DACA, which requires that an applicant be under the age of 30 to apply. The bill also proposes that a person be here before the age of 18, not 16 like DACA. This will increase the number of eligible immigrants for this program.

To obtain CR status, a person must have:

  • Entered the US prior to the age of 18
  • Entered and lived continuously in the U.S. for 4 years prior to the enactment of the Dream Act of 2017,
  • Not have been convicted of a crime where the term of imprisonment was more than a year (felony level) or 3 offenses where the combined sentence was more than 90 days,
  • Graduated high school or obtained a GED, been admitted to an institution of higher education (college/university/vocational), or currently enrolled in secondary school or program to obtain a GED

 

Once a person obtains CR either through their current DACA status or applying under the proposed law, they can maintain that status for up to 8 years and includes work authorization. The next step is to become a Legal Permanent Resident.

If a person with CR can demonstrate that they have completed two years of higher education or two years of military service, they can apply for Legal Permanent Residency (LPR) status. If a person doesn’t complete the two year requirement based on education or military service, they can still obtain LPR status if they can show that they have been working for at least three years as a CR.

If a person doesn’t meet the work, military, or education requirements to become an LPR, they can apply for a waiver if they can show that their deportation would result in extreme hardship to a spouse, parent, or child who is a United States citizen. Many women who are stay at home mothers for their children would need this waiver.

Once a person obtains and maintains LPR status for 5 years, they can apply for Naturalization to be come a U.S. citizen. The requirements to become a citizen through naturalization will not be changed by this proposed law.

A bill similar to this was proposed in 2001 and failed horribly in Congress. It was also a bill put forth with bipartisan support. The Dream Act of 2017 has an uphill battle but the important thing to remember is to be proactive and call your senators and representatives to let them know you support the young people that were brought here at no fault of their own.

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Bars to Admission: Voluntary Departure and Orders of Removal

Bars to Admission: Orders of Removal and Voluntary Departure

Often times I get asked how long someone must wait until they can apply to come back to the United States after they get caught at the border or they are ordered removed by an immigration judge.  How long you must wait depends on the way you left and where you were ordered removed or given voluntary departure. Also, you must prove that you waited outside of the United States. It’s about location and time.

Below is a brief overview of how long someone must wait until they are eligible to apply to come back to the United States after a removal order or voluntary departure.

Expedited Removal Order or Removal Order at the border: 5 years.

Ordered Removed more than once: 20 years

Removal Order NOT at border: 10 years

Left the US while Order of Removal was outstanding:  10 years

In Absentia Removal Order: 5 years

Ordered Removed, leave, and enter or attempt to enter the United States:  Permanent (Forever)

Granted Voluntary Departure but do not leave: 10 years

If someone is granted voluntary departure and leaves when required but has been unlawfully present in the United States, they may be subject to the 3 or 10 years bars for unlawful presence.  Sometimes waivers (pardons) are available for inadmissibility and you may not have to wait the required time.  Waivers are complicated and the advice of an immigration attorney should be sought.

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New Obama Immigration Policy Goes Easier on Parents

On August 23, 2013, The Obama Administration released a memo giving greater leniency on parents who are in ICE detention. Specifically, the memo from John Sandweg, Acting Director of ICE, states that the goal of the guidance is to ensure that immigration laws are enforced fairly with respect to family laws.

The memo further states that ICE should ensure that particular attention be paid to enforcement activities involving:

  1. parents or legal guardians who are primary caretakers’
  2. parents or legal guardians who have a direct interest in family court or child welfare proceedings
  3. parents or legal guardians whose minor children are physically present in the United States and are United States Citizens or Legal Permanent Residents

The memo states that ICE Enforcement and Removal Operations will designate a specially trained coordinator in each Field Office to serve as a Point of Contact (POC) for Parental Rights. The memo also urges each Field Office Director (FOD) to review previous memos on prosecutorial discretion and to take into consideration, specifically, if a person in ICE detention is the primary care giver  of a minor or if the person is the guardian of a United States Citizen or Legal Permanent Resident (LPR) minor. If this is the case, the FOD should use prosecutorial discretion in detaining the person in ICE custody early in the case.

ICE must also assist in helping a person who has been ordered removed or deported, if asked, to arrange for guardianship of the persons minor children in they are to stay in the the United States. If the children are to be returned to the parents country of origin, then ICE must help them obtain travel documents to accompany their parent to the country of removal.  ICE should also provide sufficient notice of a removal itinerary, when safety is not an issue,  to the person being removed or their attorney so that travel arrangements may be made for the minor children.

ICE must also ensure that while the person is detained they attend any and all family court hearings. The memo states that in person appearances are the best, if practicable, but if not, then teleconferencing is the next best option if the family court allows it.

 

 

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Senate Agrees to Hear Debate on Immigration Bill

Last week the US Senate approved the motion to proceed with the Gang of 8 immigration bill.  There was overwhelming approval to move forward with meaningful immigration reform!

In a vote of 84 yeas and 15 nays, the US Senate agreed to move forward and hear the Gang of 8 immigration bill. The Senate will now debate and discuss the bill and decide if any changes are to be made before a final vote to present it to the House.

The bill was authored by 8 US Senators, which comprised of 4 Democrats and 4 Republicans. This is the first time that an immigration bill was a bi-partisan effort by the current Congress.

Who are the Gang of 8 members? They are:

To find out more about immigration reform or how you may be eligible for immigration benefits, see Immigration Attorney Jennifer A. Gutierrez. Call 713-974-1151 for a free consultation.


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