DACA Wind-Down Guide

According to the U.S. Department of Homeland Security, the current administration elected to rescind the DACA program due to ongoing litigation by attorney generals in nine different states threatening a lawsuit. The participating states argue the program is an “unconstitutional exercise of authority by the executive branch.” In response, the current administration elected to end the program with no alternative in place.

U.S. Citizenship and Immigration Services has stated that all applications received on or before September 5, 2017 will be reviewed and settled on a case-by-case basis. Individuals who meet the criteria for receiving protections under DACA and who properly filed their associated applications for Employment Authorization Documents should find the process to be similar to their past experiences.

Under the current ruling, DACA recipients whose status expires before March 5, 2018 and who didn’t renew their applications by the October cut-off date are not eligible to apply. They are, however, legally allowed to continue working and gaining an education until their DACA expires. The President has also asked Congress to develop legislation that assists the 800,000 individuals affected by the wind-down of DACA, so it is possible a new set of provisions could be in place by the time applications begin expiring.

Much like current DACA recipients who didn’t request a renewal by October 5, individuals who aren’t currently covered by DACA provisions are unable to submit any applications at this time.

Under the previous provisions, any person approved for DACA could pay $360 to apply for Advanced Parole approval to travel outside the country. Once approved, recipients had the ability to leave the country to study or work abroad, visit family or care for elderly and/or sick relatives. With new procedures, no applications for advanced parole are being approved, but those with a current advance parole are able to use it for travel until the expiration date.

For 16 years, a bill known as The Dream Act has been floating around Congress, always unable to gain enough traction to pass. In light of rescinding DACA, the President has put pressure on Congress to find a solution before the end of the six-month wind-down period. Whether or not The Dream Act, or another variation of the bill will be passed, remains to be seen. If nothing is passed, DACA recipients who are enrolled in college would be able to remain enrolled but would no longer be eligible for financial aid. DACA recipients will also be classified as illegal immigrants and be subject to deportation.

The Employment Authorization Document (EAD) is a required document that tells potential employers that recipients of DACA provisions are eligible and approved to work in the U.S. Recipients who lose their EAD during the wind-down period should contact U.S. Citizen and Immigration Services and request a replacement by filling out Form I-765.

This is understandably a concern but should not cause any problems. As Castro explains, “ICE is bound by the same constitutional restraints imposed on all law enforcement agencies, with the caveat that most times, constitutional arguments in immigration cases are irrelevant, as the individual ends up detained and, in some cases, deported.” She continues, “If ICE shows up to your place of employment, you can request to see the warrant or the notice to appear, but that does not mean that in all cases ICE is prohibited from coming in. It helps to ask who they are looking for, and if it is not someone who resides in that property, inform them of that as it could deviate their desire to go into a property.”

For DACA recipients concerned about the renewal process and their personal information, Haynes offered additional details. “The information is already out there for people who have previously applied for DACA, so renewing doesn’t add additional risks.” She continued, “The applications and renewals go to the Department of Homeland Security, rather than ICE or CBP.”

No. The Family Educational Rights and Privacy Act (FERPA), a federal law, makes it illegal for colleges and universities to share information about their students, and that includes details about their citizenship status. Even if ICE or CBP began contacting institutions (the agencies currently maintain a policy of not contacting them), FERPA stipulates that the information cannot even be given to federal agencies.

“You are strong and resilient enough to have made it this far,” says Haynes. “You have allies and we will all work together so that you and your families can be as safe and secure as you can be.” Castro echoed these sentiments: “It’s not a time to be afraid. At times of great danger, great breakthrough can be achieved.” If you’re looking for ways to feel like your voice is being heard, Castro offers some helpful ideas. “Contact your local elected officials, share your story, and become politically engaged – it can make the difference.”

The American Civil Liberties Union encourages individuals in this position to speak to the agent through the door to find out why they are there and if they have permission to come inside before opening the door. Questions to ask include:

Rather than opening the door, ask the person to slide the document under the door. It must be an official warrant signed by a judge for them to demand entrance – an administrative warrant of removal issued by the Department of Homeland Security (DHS) or ICE does not give them the right to come inside. Once you have the warrant in hand, assess the document to see if it was issued by a court and signed by a judge. It must also list your name and/or specific address. An example of an official warrant can be seen here. If the document does not meet all three requirements, keep the door closed and say “I do not consent to your entry”.

Do not attempt to resist, as this could result in arrest. Instead, say “I do not consent to your entry or to your search of these premises. I am exercising my right to remain silent and I wish to speak with a lawyer as soon as possible.” If others are in your home at the time, they can also exercise their right to remain silent.

You have every right to call a lawyer from your home or have them visit you if placed in detention. You also have the right to have a lawyer present for any hearing, and it does not have to be one appointed by the government. You also don’t have to answer any questions posed by an ICE officer without first speaking to your lawyer.

Castro emphasizes the importance of having representation during this time. “I cannot stress this enough, it is very important to get individualized legal advice.” She continues, “You may be eligible for another form of immigration status, so it is crucial that you receive advice specific to your facts.”

If you can’t pay for a lawyer, Castro suggests reaching out for help. “Ask your school whether they have a fund for you to seek legal advice. You should also check with a local legal clinic.”

According to ICE rules, individuals can only be held for 48 hours (unless there are “emergency or other extraordinary circumstances” that makes it reasonable for the individual to be held longer). After this time period, ICE must either bring immigration charges or release you on bond.