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Should You Apply for DACA? An Update

A lot has been written about President Obama’s courageous Deferred Action for Childhood Arrivals (DACA) program, including the requirements, what kind of evidence is needed, and how to apply. There is a ton of “how to” information on the Internet from the implementing agencies, as well as from attorneys, nonprofit organizations and some not so well-meaning lawyers and non-lawyers wanting to take on DACA clients. As of October 10, 2012, USCIS has received 179,000 DACA applications and has approved 4591 of them. With an estimated 1.7 million potentially eligible DACA applicants, of whom only 10% have filed so far, a lot of people appear to be holding off on filing either due to the $465 cost, the unpredictability of the election, or they have a “wait and see” attitude about how the program will be carried out.

Now that DACA has been underway for almost two months, I have given more thought to the various opinions of professionals and pundits about this program and believe the more important question should be, even if you qualify, should you apply? In the end, it is up to each prospective applicant to independently decide whether to apply by weighing the risks and benefits about this unusual program. Although “deferred action” has been around for ages, we have not seen this “benefit” offered on such a potentially massive scale. For the people not already in removal proceedings, we are talking about stepping out of the shadows voluntarily for a short term unpredictable future status that can be terminated at any time. Pros and cons of applying are discussed in more detail below.

The Politics of DACA

We are less than a month away from the Presidential election. But it is also an election for members of Congress. President Obama has said he would continue DACA, and the current program anticipates a renewal process after two years. However, both candidates want Congress to do its job and work on Comprehensive Immigration Reform or some variation of the DREAM Act for this group. (Governor Romney has said he would veto a DREAM Act.) The only reason we have DACA is because several Congresses have failed to enact immigration reform over the last decade and the next Congress may be no different. Or will it? We just don’t know at this point.

Governor Romney said in the last couple of weeks that if he wins, he would honor DACA grants as of inauguration day on January 20, 2013. But, then he said two confusing additional things. First he said he would also honor any cases filed before January 20, 2013 and not yet decided because applicants would have already paid the filing fee for the “visa” and they should get something for that. (Obviously, by calling the DACA program a visa, he is either ignorant about the program or is misleading the public about what it is. Further, this argument treats DACA as a commodity that is purchased.) But then he said he would only honor the cases that have been GRANTED by January 20, 2013. This implies the cases still pending by that date could be denied and/or people placed in removal proceedings. Being an election, any candidate can say anything that is politically expedient at the moment to get votes and then do something else once in office. Therefore, the whole situation is highly unpredictable.

Immigrant Advocate Voices

In the last few weeks and months, I have heard the following viewpoints on whether people should apply for DACA. Potential applicants will have to balance these arguments and make their own decisions about which arguments have the most meaning for them when weighing whether to apply and take on further risks. Timing is everything in part.

Pros:
1. There is safety in numbers. The more people that apply, the more advocacy power as a group, and the less likely benefits will be taken away.
2. DACA grantees could very well be absorbed in any new program. There is historical evidence for this. An example is the fate of the Guatemalans in the 1990 class action case, American Baptist Churches v. Thornburgh in which they were able to reapply for asylum. Later this group morphed into the Deferred Enforced Departure program. El Salvadorans obtained Temporary Protected Status. Later, these same El Salvadorans and Guatemalans were able to get green cards years later when Congress enacted the Nicaraguan and Central American Relief Act in 1997.
3. DACA recipients are low on the ICE priority list for removal pursuant to the prosecutorial discretion memos.

4. DACA recipients might in the future have travel benefits; however legal advice about travel is highly recommended due to the complexities of unlawful status/unlawful presence in the US and the 3 and 10-year bars or permanent bar to re-entry, and its relation to travel and ability to re-enter the US. In addition, case law has changed recently in this area that may open up travel opportunities for some.
5. Some speculate that Governor Romney, if elected to the Presidency, might eventually realize the political suicide of terminating the program or putting applicants in removal proceedings.
6. The benefits of being able to obtain work authorization and then a valid social security number are enormous. In addition, depending upon the state where one lives, opportunities for lower tuition, scholarships, drivers’ licenses and other career opportunities may become more available.
7. The confidentiality provisions prohibit ICE and CBP from relying on DACA application information unless the person is engaged in fraud or criminal activity.
8. Polls of public sentiment show that a majority of Americans favor Congress creating a path to legal status for those that are already here in undocumented status.
9. DREAM Advocates won a hard battle to get this relief, albeit not the desired relief. It is one step forward and the biggest development in years. Whatever happens with the election, empowered DREAMers and other immigrant advocates will fight on. The Wall Street Journal recently issued an article about the history of the DREAMers’ advocacy efforts in Anatomy of a Deferred-Action DREAM. We can expect more advocacy and action from this amazing group of people regardless of the election outcome.
10. The government already knows about people who are in removal proceedings, so there is nothing to lose in applying for DACA if you belong to that group, although this group should seek legal advice to determine if other relief is available that might be better.

Cons:
1. DACA does not presently lead to a visa, green card/permanent residence or citizenship. It is an interim band-aid not to deport a person for two years with the added bonus of a two-year work permit. Congress never enacted the DREAM Act, which did have a path to residence and eventual citizenship.
2. We don’t know what happens after two years. Even though the Obama Administration contemplates a renewal option after two years, we don’t know whether the program will be around in two years, or whether something better or worse will be around. There is no long-term history of this program. It is only two months old.
3. There are no guarantees of approval. Each case is decided on its own facts “in the exercise of discretion.”
4. There is no appeal if denied.
5. There is no guarantee about the election outcome and what the next President or Congress will do.
6. It may not be the best benefit given an individual’s situation, or by applying it could affect future long-term benefits since some of the things that are excused for DACA are not excused for longer-term benefits.
7. Deferred action can be terminated at any time for any reason. It is not an executive order, visa, green card or pathway to citizenship.
8. If not clearly qualified, one could end up in removal proceedings.
9. Assume a Romney win will result in an end to the program or at least the end to accepting applications after January 20, 2013. (However, he could flip flop (again) between now and then.)
10. Some attorneys feel it is malpractice to take on a DACA case that exposes an undocumented client not already in proceedings to the government. DACA puts applicants and potentially their families at risk of future removal proceedings by stepping forward and announcing themselves.
11. USCIS states the confidentiality provisions are subject to change at any time.
12. Younger people (under 29-30) have more time to see how the program shakes out or doesn’t. They can apply later if the program continues. Instant gratification is common among young people. They only see the short-term possibility of a work permit and a social security number versus the longer-term plan for indefinite legal status. Many parents are likewise desperate to have their kids get some legal status yet many are unwilling to invest in more holistic legal advice for the whole family (individually or as a unit).

Anyone with a criminal history, or history of misrepresentation in a visa application or other benefit, or anyone who contemplates presenting false information or fake documents in a DACA application, should not apply and can assume that both a Romney or Obama administration will put you in removal proceedings if you are charged with fraud or misrepresentation. Many young people do not have the qualifying relatives needed for a waiver of inadmissibility or removability based on fraud or misrepresentation. People already in removal proceedings should consult with a lawyer to determine if DACA would be better than any other alternative applications for relief available in immigration court, or if they have any of the previously described kinds of problems. Additionally, anyone who does not have a clearly eligible basis for DACA should seek legal advice before applying.

Advocacy Efforts

Immigrant rights groups are advocating that USCIS adjudicate all pending cases on or before January 20, 2013. Further, they are asking the Romney campaign to honor all the pending cases if not adjudicated by January 20, 2013. He is also being asked not to put applicants into removal proceeding if their cases are not adjudicated by that date.

DACA is a hard-won victory, thanks to the tireless efforts and tremendous guts of potential DREAM Act youth and immigrant rights groups. They have organized and advocated very well, and no doubt, whatever happens with the election, they will soldier on after the election regardless of the results.

Looking at the numbers of filed cases, it seems a lot of people are holding off until the election. If President Obama wins, I would expect a flood of applications the next day. If Governor Romney wins, I would expect very few applications to be filed unless he comes out with a statement honoring those cases in process before Inauguration Day, in which case, there could be a flood of applicants.

I firmly believe it is important for people who clearly qualify for DACA to pause and make sure they understand what they are getting into by discussing the risks and rewards with a qualified and experienced immigration attorney or BIA accredited representative and their families. Just because one easily qualifies for DACA, I would resist the urge to just throw an application into the ring based solely on DACA eligibility without first considering the various arguments above, and deciding what is best for you individually and perhaps for your family. In another blog post, Do DACA Applicants Need Lawyers?, I discuss whether a person who appears to be DACA eligible needs a lawyer to submit the application, and why it is more beneficial to have a more holistic evaluation of one’s circumstances before sending in that application.