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September 11, 2017 Practice Points

The End of DACA: What You Need to Know for Your Clients

By Jessalyn Schwartz

On September 5, 2017, the Trump administration rescinded the June 15, 2012 memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," which established the program known as Deferred Action for Childhood Arrivals (DACA). A timeline of how we got to this point since DACA's creation is summarized in the Department of Homeland Security (DHS) statement linked above.

DHS has announced the following decisions and steps that will be taken to execute the rescindment of DACA:

  1. DHS will adjudicate, on an individualized basis, pending, properly-filed DACA applications and requests for employment authorizations accepted by September 5, 2017;

  2. DHS will reject any applications and requests for new employment authorizations filed after September 5, 2017;

  3. All renewal requests for DACA and employment authorizations from current DACA beneficiaries who have been previously accepted or whose benefits expire between September 5, 2017, and March 5, 2018, will be adjudicated on a case-by-case basis AS LONG AS they are/were filed before October 5, 2017 (meaning there is no opportunity to apply for renewal if DACA benefits expire after 3/5/2018);

  4. DHS will not terminate or revoke any current benefits during remaining period of validity for DACA recipients;

  5. DHS will not approve Form I-131 applications for advanced parole (to travel abroad). United States Citizenship and Immigration Services (USCIS) retains their authority to revoke or terminate advanced parole authorizations at any time. Customs and Border Protection (CBP) will maintain discretion to determine admissibility and grant of parole to anyone at the US border;

  6. DHS will honor continued validity of previously-granted advanced parole documents;

  7. All pending Form I-131 applications filed under DACA will be administratively closed and fees will be refunded to applicants;

  8. DHS may exercise discretionary authority to terminate or deny deferred action to any individual when immigration officials deem denial to be appropriate.

Numerous legal and advocacy organizations have developed useful tools for current DACA recipients, applicants, and activists. All of these organizations encourage vigilance in following the news and staying aware of updates and other changes that may come as the immigration debate continues.

The National Immigration Law Center (NILC) encourages individuals to speak with an immigration attorney or to a representative accredited by the Board of Immigration Appeals before filing for DACA renewal. They further suggest that any person filing for renewal should be represented by counsel or a representative and to file a proper G-28 form with the application. DACA recipients should be reminded that employers should not be asking to verify permits before their expiration dates. Employees may ask for a leave of absence to attempt to show their authorization, but no employer is obligated to allow such a leave. More specific answers are also provided addressing issues surrounding driver's licenses/identification, healthcare coverage, access to pregnancy/maternal care, access to higher education, and tax and financial concerns.

The Immigration Legal Resource Center provides useful information sheets in English, Spanish, Traditional Chinese, and Simplified Chinese. The Resource Center expects to have this document in more languages soon. Their advisory offers a simplified summary of the DHS actions and specific information on a number of relevant subjects facing current DACA recipients. The document reminds that Social Security Numbers (SSN) are valid for life, regardless of DACA and work permits expiring, and advises DACA recipients to apply for a SSN while DACA is still valid to ensure access to education, housing, banking and other services. Advanced Parole is also discussed here, suggesting that recipients speak to an experienced immigration professional before leaving the country, even with proper documentation, due to the discretion USCIS maintains for denying reentry to the United States. Recipients are further encouraged to avoid contact with law enforcement that may result in any criminal charge and are advised of their constitutional rights to decline to open the door to any immigration agent and refuse to sign documents without speaking to counsel. Printable cards asserting these rights and others are available on the information sheets for individuals to provide to immigration agents who approach them or their homes.

Here to Stay is another organization that has compiled a number of incredibly helpful tools for recipients and advocates. These resources include "Top 5 Things to Know" following the DACA announcement, termination FAQs, workplace rights, mental health resources, updated guidance advisories, educator toolkits, and specific documents for immigrant entrepreneurs. The site also helps to locate events to support and protect immigration communities and provides a number of other opportunities for interested persons to join the fight.

Jessalyn Schwartz is an attorney in Boston focusing on child welfare and mental health law.

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