DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

On Tuesday, September 5, U.S. Attorney General Jeff Sessions announced that President Trump is ending the Deferred Action for Childhood Arrivals program (“DACA”), with a gradual phase-out, and official end date of March 5, 2018.  DACA was established through an Executive Order in June 2012 by then-President Obama and provides qualifying undocumented immigrants with a renewable two-year period of deferred action and work authorization, allowing them to remain in the United States to study, work, or serve in the military.  Individuals were eligible for DACA relief if they satisfied a strict set of criteria, including:

• Were under 31 years of age as of June 15, 2012;
• Arrived in the U.S. while under the age of 16;
• Continuously resided in the U.S. from June 15, 2007, to the present (though brief and innocent absences for humanitarian reasons do not count against this);
• Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
• Were physically present in the United States on June 15, 2012, and at the time of applying for DACA relief;
• Were in school, had graduated from high school, had obtained a GED, or had been honorably discharged from the Coast Guard or armed forces;
• Had never been convicted of a felony, a significant misdemeanor, or more than three misdemeanors; and
• Were not a threat to national security or public safety.

Though the phase-out will occur gradually over the next six months, and Congress has been urged to pass a replacement in the meantime, this announcement instantly made the future of current beneficiaries unclear.  Given this resulting (and continued) confusion and the potentially devastating outcomes for an estimated 800,000 current and potential DACA beneficiaries, the BBA moved quickly to gather a panel of immigration law attorneys to discuss what members of the bar, potential clients who are directly affected, and the public need to know about the decision and what to expect in the coming months.

For full details, watch the program here.

We were fortunate enough to be joined by three experts in the field:  Iris Gomez, of the Massachusetts Law Reform Institute (MLRI), is a nationally-recognized expert on immigration and asylum law and has served as an immigration attorney at MLRI for 25 years and now directs the organization’s Immigrants Protection Project. Scott J. FitzGerald, of Fragomen, Del Rey, Bernsen & Loewy, LLP, has practiced in immigration and nationality law for over 20 years and has in-depth experience in the full gamut of U.S. immigration and nationality laws and policies. And George N. Lester, also of Fragomen,  has over 25 years of experience in advising diverse companies seeking to hire foreign professionals and representing them through all the steps necessary to achieve temporary or permanent immigration status.

The Phase-Out:

Iris Gomez kicked things off with an overview of the program itself and how the phase-out would impact various types of immigrants. The original program protected qualifying immigrants against deportation and granted them work authorizations for a two-year, renewable period. The program also included travel benefits, known as advance parole, which allowed participants to leave the country and return without being ejected at the border.

As the phase-out begins, different groups will be impacted in different ways, which Gomez helpfully explained:

• Current beneficiaries of DACA whose documents expire within next six months: Those beneficiaries whose documents expire between September 5, 2017, and March 5, 2018, have until October 5 to renew their DACA authorization and work permits. Because of this tight timeframe, the need for legal assistance for this category of beneficiaries is exceedingly pressing. Greater Boston Legal Services is hosting Clinics on the next three Mondays in advance of this October 5 deadline.
• DACA beneficiaries who have already applied for renewal and those applying for DACA for the first time: Those individuals who had applied for renewal, or for the first time, before September 5, 2017, will continue to be adjudicated under the pre-existing process. The two-year authorization period will begin upon the final adjudications, so many of these individuals may remain beneficiaries into 2020 or 2021.
• Current beneficiaries with documents that will expire after March 5, 2018: These beneficiaries will retain their status in their documents until their individual expiration dates, so their work permits will remain valid through the date on their work authorizations.
• Past DACA beneficiaries who let their DACA qualification expire and had not yet applied for renewal: These past-beneficiaries are now ineligible and can only benefit if there is a legislative solution or other remedy that covers them.
• Similarly situated immigrants who, in theory, are eligible for DACA but never filed: These individuals are also left with few options as a result of the program’s end and are similarly reliant on a legislative solution or other remedy.
• Advance Parole Applicants: The granting of advance parole on the basis of DACA was immediately terminated upon the September 5 announcement. However, those who had already received advance parole but not actually travelled will, in theory, be permitted to return if they do leave the country. There is some risk in this, though, because Customs and Border Patrol Officials exercise broad powers in turning people away at the border. As a result, this also represents a category of individuals for whom access to an immigration attorney is very pressing.

Options beyond DACA

Next up, George Lester discussed other immigration options for those who previously had relied on or expected to rely on DACA relief, including:

• Green Card based on a Family Member: Those individuals that may be eligible based on, for example, marriage to a U.S. Citizen or an approved family benefit petition from another family relationship (child, parent, etc.)
• Green Card based on Employment: Those individuals that may be eligible based on one of numerous work-based petitions.
• Temporary Work Visa Status: Those individuals that may be eligible for one of numerous temporary employment-based options, including H1-B visas.
• Section 245-I: Those individuals eligible to receive a waiver of unlawful presence, which often bars exercise of the above options.
• Asylum and Temporary Protected Status (TPS): Those individuals that meet the requirements of asylum, including well-founded fear of persecution upon returning to their country of origin, or TPS, when conditions in a country temporarily prevent individuals from returning safely.
• Special Immigrant Juvenile Status: Those individuals under 21 and meeting the other criteria of SIJS, including being a victim of abuse, abandonment, or neglect.

Options at the Legislative and Court Level:

Following the overview of other options, Scott FitzGerald discussed the prospect of a Congressional solution which would prevent the end of DACA. President Trump, himself, has urged Congress to find a solution for DACA for the so-called Dreamers who are covered by it.  However, given the political climate in Washington, not least surrounding the highly-charged issue of immigration, there is much uncertainty about the likelihood that such legislation can be passed.

This prospect is made more complicated by the fact that many in Congress will demand that any continuation of DACA  include more-restrictive immigration measures, such as funding for building a border wall, stricter verification of employment status-, and major changes to the family-based immigration programs.

In addition to these legislative efforts, a lawsuit has been filed in the Eastern District of New York by 15 states, including Massachusetts (through the office of Attorney General Maura Healey), and the District of Columbia, demanding injunctive relief to prevent the phase-out of DACA provisions.  The suit outlines a number of arguments, including that the Trump administration violated the due process rights of the young immigrants impacted by the phase-out by failing to safeguard the personal information they provided to the government in order to gain DACA relief.  The suit also argues that President Trump violated the equal protection clause by targeting immigrants from Mexico and that the President has demonstrated “racial animus” based on past statements and actions.

We were pleased to be able to host this important and timely event, and we hope it that it offered some measure of clarity in an area of on-going uncertainty.  We will continue to monitor developments and offer guidance in any way we can.

In the meantime, we are very happy to hear about the partnership between the City of Boston, the Massachusetts Legal Assistance Corporation, and MLRI to create the Greater Boston Immigrant Defense Fund. The initiative will help provide much-needed legal assistance to immigrants facing removal proceedings.

In a statement on the announcement, BBA President Mark Smith expressed gratitude “to Mayor Walsh and the Fund partners for this ambitious effort to increase access to justice for some of the most vulnerable members of society,” noting also that, given the Boston Bar Foundation’s grant-making to several legal-services providers who represent immigration clients, “we are acutely aware of the need for legal representation in this area, and we stand ready to assist and support attorneys and organizations who commit their time and talent to this important cause.”

Be sure to stay tuned for more updates on this initiative and future Immigration-Related events here at the BBA, like the upcoming “Immigration Law as it Relates to Representing Health Care Providers” lunch program that will be held on September 26.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association