Law360, New York (May 17, 2017) By Allissa Wickham
— President Donald Trump hasn’t ended a deportation protection program for young immigrants, but recent incidents in which so-called Dreamers were detained or deported have added a fresh element of uncertainty to the situation.
During the campaign, Trump promised to end President Barack Obama’s executive actions on immigration, including the Deferred Action for Childhood Arrivals program, which allows immigrants who entered the country without authorization as children to apply for deferred deportation and receive work permits.
But that promise hasn’t come to pass, as the program remains intact, and Trump has indicated he’s not interested in discontinuing it. During an April interview with The Associated Press, for instance, Trump agreed that his administration’s policy would be to allow the young, unauthorized immigrants known as Dreamers to stay, saying, “The dreamers should rest easy.”
However, despite Trump’s new stance, there have been a number of high-profile incidents in which Dreamers were targeted for immigration enforcement, although these incidents don’t appear to be indicative of a nationwide effort against people with valid DACA status.
In February, for example, 23-year-old Juan Manuel Montes Bojorquez was deported even though his DACA didn’t expire until 2018. The government claimed in April that Montes lost DACA status when, at one point, he left the country without what’s known as “advance parole.” And then there’s the case of Daniela Vargas, a 22-year-old Dreamer who was arrested after leaving a press conference, and later released.
With the mixed signals the Trump administration is sending out regarding to Dreamers, here’s what attorneys are telling DACA clients about how to proceed.
Present Clients With the Risks
Several attorneys said they’re advising clients on the risks of applying for DACA, since benefits like work permission may need to be weighed against the potential danger of revealing yourself to the government.
“I’m giving people the pros and cons, and letting them decide,” said Jarred Slater of Quan Law Group. “The obvious benefit of DACA is the employment authorization, Social Security number and then [a] driver’s license.”
Meg Hobbins, an attorney at Maggio Kattar Nahajzer & Alexander PC, said one thing her firm is doing is talking to potential clients about whether they could be viewed as an “enforcement priority” under one of Trump’s executive orders, which expanded such targets. If someone is an priority under the new order, Hobbins would caution them against applying for DACA.
“What we’re doing is analyzing, ‘Could they potentially be an enforcement priority?,’ and if so, warning the individual about the dangers of moving forward,” Hobbins said.
Another thing to keep in mind is whether someone already has older orders of removal, noted Lynn Susser of Siskind Susser PC, as U.S. Immigration and Customs Enforcement appears to be taking a harder line in those cases.
Notably, some attorneys were split over whether, in general, it’s wise to apply for DACA now, given the harsher immigration landscape, and lingering doubts over whether Trump will preserve the program in the long run. The benefit is obtaining deportation protection in the midst of a heavier enforcement environment, while the worry is the rug could be pulled out from under, if Trump has a change of heart.
Ultimately, it may just come down to an informed decision by the client.
“Where the cases are fairly clean, the benefits outweigh the risk,” Susser said. “But I do think it’s a personal decision.”
Renew as Soon as Possible
People should also apply for their DACA renewals as soon as they “possibly can,” according to David Gluckman of McCandlish Holton PC.
“If you don’t have the DACA renewal granted before your current DACA expires, then you are technically not protected,” Gluckman said, adding that “unscrupulous agents” may try to “use any pretext they can to try to come get you.”
Gluckman also recommended that Dreamers ensure that everything is up to date with their DACA status before they get involved in activism, but that otherwise, they shouldn’t let their circumstance hold them back from making their voices heard.
“Certainly, do not let this stand in the way of advocacy,” he said, noting that “poll after poll has shown that most Americans support giving them a pathway towards some sort of legal status.”
Finally, attorneys may want to manage client expectations during the renewal process, since past DACA authorization doesn’t mean some will get it in the future.
“We’re really just trying to educate people to not feel like, it is going to be a safe, problem-free process to renew,” Hobbins said. “And that past status does not guarantee future status. Because revocations are happening.”
Consider Options Beyond DACA
Where possible, DACA recipients may also want to look for immigration options beyond the program, attorneys said. For instance, if someone qualifies through a relative, it could be possible to file a hardship waiver, to show difficulty that “would be suffered if they left the country,” according to Karen-Lee Pollak of Pollak PLLC.
“In order to get their green card, if the [waiver] is approved, they would actually have to ‘consular process,’ so they’d have to leave the country to go to a consulate, to get their visa,” Pollak noted.
Gluckman summed it up by saying, “Anybody who has DACA, just look for other options to transition out of DACA.
“DACA is a sort of a Band-Aid, but you’re looking for the long-term cure and the long-term solution, and I think that there are options out there for folks,” he said.
–Editing by Pamela Wilkinson and Aaron Pelc.