A HYPOTHETICAL CASE STUDY

Let's take the example of a 35 year old Dreamer, #DACA expiring Mar 2018. He came to US with his parents at age 4. He has no criminal record, and has never left the US. He goes to see an immigration lawyer his family has been working with for years.

First: Our Dreamer is privileged, because many cannot afford counsel. Though they're maligned as "lawbreakers," the government doesn't provide them lawyers.

OK. Let's figure out how to help our Dreamer!


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"Leave and come back legally."

Leaving will trigger a 10 year bar to reentry. A waiver (forgiveness) exists, but our Dreamer doesn't qualify. He has no parents or spouse who are US citizens or green card holders. An uncle is, but that doesn't help. Let's say he has US citizen kids. Well - to qualify for this waiver, hardship to kids doesn't count. He's out of luck.

"Afraid to go back? File for asylum!"

General fear of return is insufficient to win asylum. It must be on very particular grounds. Despite being federal, asylum law doesn't operate the same in all states. Failure to win asylum results in being placed in removal proceedings. And that's if Dreamer had no prior contact with ICE. If he has, he likely has an in absentia order of deportation. That means he would be barred from applying for asylum, unless he can show conditions in his country of origin have changed to create a new type of fear he didn't have before. Filing such a motion, if denied, would put him on the radar for deportation. 

"Just wait for the law to change."

Probably the best advice so far; "best" being relative. In the meantime, can't go to school, work legally, or drive. The #DreamAct has failed for 17 years and counting.

"Get married!"

And set down deeper roots into a country refusing to let him stay?

Even if he did, he still needs to win a waiver and return home to reenter. That waiver wasn't allowed to be filed inside the US until 2013. And still need to show hardship to USC spouse. Hardship to our Dreamer is legally irrelevant.

"Don't you have TPS or something?"

Only some Dreamers do; depends on their country. The largest proportion of Dreamers are Mexican and Mexico has never been designated for TPS. (And probably never will.) But this is being taken away by the administration, country by country, determined to leave #dedocumented as many immigrants as possible.

"Go talk to immigration."

In other words, serve yourself up to ICE. Not a good idea. They're not there to help. You're not setting up a payment plan with the IRS. Walk in, and you're on your own, buddy. No lawyer either.

"Ever been a crime victim? Maybe you can get a U Visa."

No, thank God. So no visa for me?

Nope.

Wait...I remember one time my work permit and valid SSN were stolen. I spent months fixing it. Does that count?

No. Not a qualifying crime. Sorry.

"Get your employer to sponsor you."

You're not eligible for a green card inside the US if you have more than 6 months of unlawful presence. So your employer could start the process but you couldn't file for the green card, so what's the point in starting? Also, you can't leave and come back because of 10 year bar. By the way, your employer has to test labor market first and give job to qualified US workers first.

"I'm from El Salvador. I've saved up $120k. Can't I invest and create a business that'll hire US workers?"

No. El Salvador isn't on the treaty investor country list.

"I'm from Honduras. Can I?"

No. Honduras is on the list but unlawful presence prevents you from getting a visa.

"What about the 10 years law?"

No such thing. Please don't listen to rumors on the street or what you read on the Internet. There is no law that prevents you from deportation if you've been here for more than 10 years. One of the dangers lurking for Dreamers and people like them is the bad advice floating around. One of the most persistent rumors is the "10 year law" - that if you're here for 10 years (and, in some versions, have kids here) then you cannot be deported. No such law ever existed.

"What if I serve in the military?"

There was a program called MAVNI that allowed getting citizenship for certain noncitizens with certain skills. But It expired in 2016. The current administration has failed to renew it. So, you can't serve.

"Can't I change status to a student visa?"

No. Unlawful presence requires you to leave. And once you do, you trigger the 10 year bar to reentry. You can't switch to ANY other status, actually. All for the same reason.

"Good news! I found out my grandpa became a US citizen and filed for all of us back in May 2001! I'm good now, right?"

So close, but no. Unlawful presence makes it impossible to qualify for a green card even though you have an approved petition. If it was filed before 4.30.01 you might have been ok under an old law that was never renewed. But May is too late.

"Ok my brother was born here. He can file for me, right?"

Yes, he can file a petition, but no, it won't lead to a green card. You still have to leave. And when you do, you trigger the 10 year bar. You can't get a green card inside the US. Besides, sibling petitions take 13+ years to become current. Filing a petition, then, gives ICE 13 years to find you.

I could go on and on. Immigration lawyers reading this will identify with a lot.

Remember: This isn't your granddaddy's immigration system. It is usually impossible to comply with. It is full of legal pitfalls. One mistake and boom! You're in immigration court fighting to stay.

So before you judge the 800,000-some Dreamers, or the rest of the 11 million plus undocumented population, or the forcibly dedocumented, or the ones currently in legal status struggling to remain so, ask yourself: "Were they given a fair chance to fix their status?"

Some legal options for Dreamers to start thinking about during #DACApolypse.

I preface this by saying don't let up advocacy and working with allies on the ground, and in the halls of Congress. Ultimately we need our leaders to act. But I'm a lawyer, and so I'm going to talk about legal options that can help at least some people. These are NOT exhaustive options and are meant to shed light on options that MAY exist. Nothing can substitute for the targeted advice of a lawyer, and every case is different. But this way you can collect the information a lawyer may need to fashion a way for you to stay.



Broadly, Dreamers fall into three categories:

1. Kids who entered legally and overstayed or otherwise fell out of status.

2. Kids who entered illegally and were not caught.

3. Kids who entered illegally, were caught, and now have final orders of removal for various reasons.

For (1), options such as bona fide marriage to a US citizen spouse may work. Be sure it's a real marriage with intent to live together and establish a life together! And if DACA was obtained before age 18 years 6 months, or if some other status like TPS exists, employment-based immigration options may work, though this has to be very carefully planned and will require consular processing instead of green card filing inside the US.

It may also work for those in category (2) if the DACA holder has left the US and re-entered on advance parole (travel document/permiso para viajar)

Otherwise, those in all categories need to (while they still can) talk to a lawyer about potential asylum claims. By definition, if they have DACA, they will have been here for more than 1 year, which usually bars asylum - unless one can show changed country conditions or personal circumstances or other extraordinary reasons why asylum wasn't filed within 1 year of entry.

That means finding out what's going on with your family back home.

• Have any family members been threatened or targeted by a criminal gang?
• Did your religion change?
• Did you come out as gay, lesbian, bisexual?
• Did you take part in political activities or make any statements your home country's government would harm you for?
• Did any of your family members make such statements, write a song, publish something?
• Do you belong to an ethnic or religious minority and your home country has begun targeting other members of your group?
• Do you have tattoos that might be misinterpreted by the police or a gang in your home country?
• Did you survive something terrible in your home country and couldn't file asylum because you couldn't bring yourself to talk about it?
• Do you have any family members who held any jobs or positions that a gang, extremist group, criminal enterprise, or the government itself might not like?
• Is there a new war or conflict going on that might affect you or your family/community/tribe?

These are the types of questions I'd want to ask you if you came to my office. Again - not exhaustive. Just something to start thinking about.

If you have an order of removal, collect all evidence from when you came into the US. If you don't have it, it may be possible (and even necessary, though risky) to file a Freedom of Information Act request (FOIA) to get copies of your immigration paperwork. A lawyer can then determine whether there were any legal deficiencies with that paperwork that might entitle you to have your deportation case reopened, cancelling the deportation order, which means ICE would not be able to just pick you up and deport you.

If you have *any* pending criminal charges, get an immigration lawyer in addition to your defense attorney. It will be that much more important for the immigration consequences of the case to be considered.

If nothing works, it's time to think about options to lessen the chance that ICE picks you up.

Bottom line: *now* is the time to explore your options. You might not qualify right now for anything, but you might make yourself qualify by, say, finding an employer or learning something about new dangers back home. It's a lot harder to do this from inside a detention center. Right now you have your freedom, so use it. I meant what I said earlier: fear kills your intelligence and your courage, and you'll need both to get through this. But you're not alone.

We are with you.
Estamos con todos Uds.
Nous sommes avec vous.
ہم آپ کے ساتھ ہیں۔
نحن معکم۔
हम आपके साथ हैं 
ਅਸੀਂ ਤੁਹਾਡੇ ਨਾਲ ਹਾਂ
我们与你同在！

Attorney General Jeff Sessions announced the end of #DACA today. Here is what that means (based on info we have now):

1. If you have never filed for DACA, it's too late, as of today. You'll have to find another way to stay. There may be options depending on your particular history, so seek counsel.
2. If you are filing for renewal of DACA, you have until Oct 5 to get your application in. You can only renew if your DACA expires on/before Mar 5, 2018. If your DACA expires after that, you will not be able to renew.
3. There is a new standard: even DACA renewals accepted by USCIS will be adjudicated on a "case by case" basis. I expect this to mean more arbitrary denials. Just because you file it correctly doesn't mean you'll get the renewal.
4. If granted, renewals will be for the full 2 year period.
5. No more advance parole for DACA holders. This closes the ability to travel, reenter, and apply for a green card (for those familiar: no more "DACAbally." This applies to advance parole requests that are pending as of today, 5 Sep 2017.
6. If you have DACA, and it's approved, it may not be terminated based on today's announcements, but it still can be terminated for any other reason.

If you're a Dreamer - please do not despair. We've been getting the weeping phone calls today. But fear kills your intelligence and courage, and you'll need both. There are thousands of people - lawyers, advocates, elected officials - with you on this. You're not alone.

On policy:

This is every bit the narrative expected from the likes of Jefferson Beauregard Sessions, III. Trump delegated the task of rescinding DACA to his AG, who isn't supposed to dictate policy. And his presser was filled with omissions and falsehoods that belie the real impetus for today's shameful action.

1. Sessions again repeated the white nationalist battle cry that immigrants are to be feared, and "we can't admit everybody" and those we do admit should "assimilate" (as opposed to integrate) - a clear nod to the ill-conceived RAISE Act. Yet he supposedly is waiting for Congress to do something to admit the 800,000 Dreamers anyway.​
2. Just like he did in his confirmation hearing, Sessions said the law must be enforced. But the law itself gives wide discretion to immigration officers. The ramped up deportations without regard to criminal history is testament to this. I suspect this is what he meant when he said his officers are now "inspired." Apparently the slow death of DACA is the "compassionate" way to do things - the new buzzword being an "orderly winding down" of a supposedly illegal program. The 6 month period will make it more difficult to obtain an injunction halting the rescission - but let's hope I'm wrong about that.
3. Separation of powers: It is frightening that the head of the US Department of Justice does not understand our system of government. He says the President (Obama) had no authority to temporarily shield whole classes of immigrants from deportation. Yet President (Trump) has unbridled authority to ban classes of immigrants and deport them. Sessions can't have it both ways. If he had a problem with the way DACA was rolled out, then roll it out properly instead of rescinding it. If DACA is illegal no matter how it was rolled out, then *so is the travel ban.*
4. The 5th Circuit did indeed rule that DAPA (which was similar to DACA) was probably an excess. But let me say this clearly: the Supreme Court has *never* ruled that DAPA was unconstitutional. Let's also remember that a lawsuit to shut down DACA would go before the very same judge Hanen who shut down DAPA in the first place. Hanen is far from a neutral arbiter, and I don't make that statement lightly.
5. The supposed legislative fix. Sessions conveniently left out something that should have been made very clear: Congress has had since 2001 to find a solution for Dreamers and have failed. Now, they're supposed to get their act together in the next 6 months. The implication - and perhaps expectation - is that nothing will happen, and all Dreamers will lose their ability to work, be arbitrarily labeled a "public threat" under Trump's March 6 executive order, and be put in line for deportation.
6. Lest it be forgotten, this is textbook bad faith. Coax immigrants to come out of the shadows with promises of a work permit and no deportation, get their information, and then use it against them. I am not blaming Obama's administration for DACA - but it was always meant to be a stop-gap measure. And the very same Congressmen now clamoring for the "rule of law" are the ones who stonewalled every single attempted legislative fix.

This is one campaign promise the administration has been able to keep. Rescission of DACA makes no sense economically, and it's certainly the immoral thing to do. No court has ruled it illegal. The only possible explanation: xenophobia. Now structural and government-certified.
What can you do?

Use your citizenship. Please follow these steps:

https://www.govtrack.us/congress/members

Type in your address. Get your congressmens' contact info. Then CALL them ON THE PHONE and tell them:

1. You want to see them #DefendDACA publicly, and strongly denounce the administration's cruel treatment of 800,000 young immigrants who know no other home. You will use your vote to speak for those who have none.
2. Ask them whether they will support the #DreamAct and a path to citizenship.

If you can't get through, keep calling. If you have no more time to try to get through, visit their webpage and at least send in an email.

Remember - revoking DACA comes from a place of hatred and exclusion, not respect for the law. By advocating for change, you are actually standing up for our Constitution and promoting respect for the law.

DACA appears safe, for now. It seems media across the spectrum reports that it's a(nother) broken promise for Trump - with the Washington Times adding that the reversal "enrages conservative base" and the Daily Caller bemoaning that "100,000 illegals got amnesty in Trump's first three months." Rep. Steve King - who wonders how "we" can "restore our civilization with other people's babies" - has mulled bringing a lawsuit against Trump (I think that would be lawsuit #136 or thereabouts) to kill DACA. Obviously this isn't over yet.
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But it is clearly a reversal of a campaign promise. I was certain that the first things Trump would do would be reinstate a Muslim registry and revoke DACA. (Silly me, it was a Muslim ban and ramped up ICE raids.)

But a few points:

1. If DACA is ok, so was DAPA. The only real difference is number of people impacted. The legal authority is identical.
2. The decision to keep DACA (for now) is political, not legal. That's a testament to the formidable power of the Dreamers, and a lesson to everyone else. It's also reassuring to see evidence of rational thought from the administration. But remember, there's no final decision. DACA can still be revoked at any time.
3. I wouldn't let Trump's base forget that he bowed to the Dreamers. Or failed to repeal the ACA. Or kept the H-1B program. Or saw a use for NATO. Or backed off calling China a currency manipulator.
4. A lawsuit by Steve King or anyone else wouldn't necessarily result in loss of DACA. Remember, DAPA wasn't killed, it stalled. It was a preliminary injunction; there was never a ruling on its ultimate constitutionality. To kill DACA, then, is an uphill battle for Steve King, even with Gorsuch on the bench. It also would presumably mean the Trump admin would be forced to defend DACA in court, multiple times. That won't go over well with his base. He could flip and revoke DACA after all, but doing that in response to a King lawsuit would galvanize Dreamers and their allies. Either way, the admin's in a pickle, and I think it makes sense for Dreamers to force the admin into a pro-DACA position it will have to defend.