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michael wildes on the future of daca

Since taking office, President Donald Trump has issued several executive orders (EOs) that have affected the Country’s immigration policies and regardless of one’s political leanings, many can agree that these EOs have resulted in significant impact on our communities. One area of immigration that President Trump has spoken on is the Deferred Action for Childhood Arrivals (DACA) program, which was created through EO by former President Obama.

As part of his campaign platform, President Trump pledged to end DACA and this seemed highly likely, especially after a draft EO, “Ending Unconstitutional Executive Amnesties,” was leaked to the press. This EO would have rescinded the 2012 DACA EO issued by former President Obama by: prohibiting the approval of initial and renewal DACA applications; allowing current employment authorization documents (EADs) to remain valid until expiration; and ending the issuance of Advance Parole (travel authorization) to DACA recipients. To date, however, this EO has not been signed.

Until further action is taken with regard to the DACA program, it is important for current and future DACA recipients to understand the potential consequences of filing for DACA.  First, it is important to understand that by applying for DACA, an applicant is making him/herself visible to the government and providing the government with personal information including, most importantly, his/her home address. Though the current policy states that this information may only be shared with national security and law enforcement agencies for purposes other than to remove, this section could be amended by the current Administration in a manner that could expose DACA recipients to enforcement and removal proceedings. This should be considered prior to filing an initial DACA application.  For those who have already applied for DACA, the government is already in possession of their information and therefore, by filing a renewal, applicants are not creating any additional risk.

Second, although the U.S. Citizenship & Immigration Services (CIS) continues to adjudicate applications for advance parole based on the original 2012 DACA memo, a memo issued in February 2017 in coordination with the EO, “Border Security and Immigration Enforcement Improvements,” directed CIS to issue advance paroles “sparingly”.  This could result in significantly fewer DACA individuals receiving travel authorization in the future. Even if advance parole is granted, it can be revoked or terminated at any time, including when an individual is outside of the United States, which would prohibit such a person from re-entering the country. These are important factors to consider when both applying for and utilizing advance parole authorization.

 We do not know how future reforms will impact the DACA program, if at all. However any individual seeking to benefit from DACA should speak with an experienced attorney concerning his/her specific circumstances. Consultation with an experienced attorney is essential in order to determine both eligibility for DACA and also the consequences of applying for DACA and placing one’s self on the government’s radar.

MICHAEL WILDES, Managing Partner

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