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.
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.