Speculation that in the coming days President Trump will end the Deferred Action for Childhood Arrivals (DACA) program has been growing stronger by the minute. If DACA were to end, it could happen in a variety of ways.
First Possibility: Allow DACA to sunset, and allowing those who presently have DACA and a work permit (with validity periods up to two years) to maintain such protection/benefits until it expires.
Second Possibility: DACA could be terminated and previously issued deferrals of deportation and work permits would be immediately invalidated, and thereby placing the nearly 800,000 DACA recipients at risk for deportation.
Third Possibility: Being of the greatest concern would be that DACA applicants’ personal information, including addresses will be shared with Immigration and Customs Enforcement (ICE). Although it unclear whether ICE would be legally permitted to use information from DACA application for the purposes of immigration enforcement, I feel somewhat confident that ICE lacks the resources to go after every DACA recipient. Nevertheless, everyone should acknowledge this is a possibility and so should prepare themselves for every scenario.
United We Dream (UWD) has provided tips on how DACA beneficiaries may protect themselves should they find themselves at risk of being apprehended by ICE. The following is a summary from their recommendations.
Do Not Open Your Doors— ICE cannot come into your home without a warrant signed by a judge, or you (or someone) giving them permission to enter the home.. With your door shut, ask ICE to slide the signed warrant under the door or push it up against a window. so that it may be reviewed.
Exercise Your Right to Remain Silent — It’s important for you to remain silent and ask to speak to your attorney. Simply tell the immigration officer: “I am exercising my fifth amendment right and choosing to remain silent until I speak to my attorney.”
Do Not Sign Anything Before Speaking to an Attorney — ICE and Customs Border Protection (CBP) may attempt to pressure or coerce you into signing your own deportation order. This is also known as a voluntary departure. Do not sign anything that they give you without first speaking to an attorney.
Record Your Encounter — Take note of badge numbers, name of officers, the number of agents, time, type of cars they used, and exactly what happened. Reporting this information will help advocates determine whether any rights violations occurred.
Report Your Encounter — UWD runs a hotline for people to report activity of ICE, CBP, or any other enforcement agencies. Report the activity by calling the hotline at 1–844–363–1423.
Contact an Immigration Lawyer — Get a trustworthy immigration attorney and explore all options to fight your case. If detained, you might be able to pay to be released on bond.
Protect Your Assets— If you bought a vehicle, home, or have a business, prepare a plan for how you will maintain them if you lose your job or are put into deportation proceedings.
Empower Others to Inquire About Your Case— Prepare a Third Privacy Waiver Form with your attorney or BIA representative. This form allows a third party of your choice (congressional office, another person that is not a family member, a non-profit organization) to request any information about your detention, immigration or deportation case from an immigration enforcement agency like ICE, CBP, or U.S. Citizenship and Immigration Services.
Prepare Your Documents— Make a folder of documents that will prove your physical presence as far back as you can. Make a copy of the front and back of your important documents such as passports, work permits, social security cards, drivers’ licenses, leasing contracts, G-28 form, Third Party Waiver, and keep the copies and originals in a safe place.
Make Plans for your Children— If you have children (under the age of 18), whether or not they are U.S. citizens, take the time to have emergency guardianship papers in place. This will provide you with peace of mind knowing how your child will be cared for if you are detained or deported. Apply for, renew, and keep safe their valid passports.
Prepare a Phone Tree— In case of detention, you need to have one person who can connect and activate all of your support system — family, teachers, mentors, and friends who will support you and your loved ones.
The coming days will be difficult, but being prepared in case DACA ends is a powerful step that can be taken to protect you and your family.
Blessed by Arrabally: DACA and TPS Recipients Who Entered the Country Illegally May Be Eligible for Green Cards
For those who entered without inspection and were later granted Temporary Protected Status (TPS) or now qualify for TPS, you may be able adjust your status by means of applying for advance parole. Also, Dreamers who qualified for, and received deferred action” under the Deferred Action for Childhood Arrivals (DACA) program, you may also apply for advance parole.
Specifically, for those TPS or deferred action (DACA) recipients who previously entered the U.S. without inspection and are immediate relatives (child or spouse) of U.S. citizens may benefit greatly by applying for and using Advance Parole. Advance parole allows you to exit and re-enter the United States with your advance parole document. The Board of Immigration Appeals in a recent case, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), held that “[a] departure under advance parole does not trigger the inadmissibility ground under 212(a)(9)(B)(i)(II).” Therefore, leaving the United States under advance parole does not trigger inadmissibility and you will be able to re-enter, this time with inspection.
Consequently, without the ground of inadmissibility being triggered under Arrabally, such recipients will now become eligible for adjustment of status (“green card”) because they will have been “paroled” into the United States within the meaning of INA §245(a). So for those DACA and TPS recipients who are married to a U.S citizen, or qualify as children of U.S. citizens, travel on advance parole may have the dual benefits of eliminating exposure to the unlawful presence ground of inadmissibility and creating eligibility to adjust status in the United States. For more information on this topic, feel free to go here.
I have had much success in getting clients their green cards as a result of having traveled outside the U.S. and returning with the use of Advance Parole. If you feel you may benefit from such process, please consult with experienced immigration attorney, as not all cases are the same. Prior departures and entries may still effect your eligibility to file for adjustment of status. This must be discussed with an attorney. Immigration law is a complex topic that is constantly evolving. Moreover, it is important that the advice you receive is up to date.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.