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The Golden Door

News and views on immigration law

Archive for the ‘Immigration policy’ Category

Perspective from a State Department officer

Thursday, February 2nd, 2017

In my last blog post, “Trump’s deliberate precipitation of an immigration crisis,” I made the case that the “extreme vetting” called for in President Trump’s Executive Order of January 27, 2017, banning immigrants from seven countries, was already in place.  I based this on my experience as an immigration attorney working with visa applicants.

Now, we have the perspective of Natasha Hall, a former Department of Homeland Security immigration officer, providing much more detail about what refugees must go through in order to be let in through our “golden door.”  Please give it a read.

For those who think that this Executive Order is the right move, think about if you were one of these refugees, what should you expect from America?  Think about having lost your home, your livelihood, maybe your family members, all your belongings, and your sense of security.  Think about not being able to go to school or to learn as a child.  Think about your entire childhood spent in crowded, desperate, dangerous refugee camps.  Think about the violence you have witnessed and experienced.  Think about not having enough food to eat, or clean clothes to wear, or clean water to drink or wash with.  Think about needing the kindness of strangers to survive, and knowing that so many times such kindness is not forthcoming.

I understand the justification given for this Executive Order, that we may inadvertently admit a terrorist posing as a refugee, but this is not the way to address that fear, for so many reasons.  In fact, many have argued, and I concur, that this order makes things worse.

If you are ever in need yourself, I would hope that others would hold out a helping hand to you, rather than remember this Executive Order and turn away as we now are in danger of doing to so many.  This order makes it this much harder to be an American in the world.  We reap what we sow.

Trump’s deliberate precipitation of an immigration crisis

Monday, January 30th, 2017

Since President Trump was inaugurated on January 20, 2017, his actions have turned U.S. immigration into a nightmare for countless numbers of lawful immigrants and visa holders and arriving refugees, and even for naturalized U.S. citizens from certain countries targeted by President Trump.  This does not even take into account those currently being processed for visa applications.

He issued three Executive Orders directly addressing immigration.  He did so without consulting the departments and agencies tasked with carrying out his orders.  CNN reported that “A Border Patrol agent, confronted with arriving refugees, referred questions only to the President himself, according to court filings.”  It reads like a line from a future movie.  The three Executive Orders were first issued on January 25, 2017.  The Executive Order addressing the admission of refugees and other non-U.S. citizens from “countries of particular concern” with regard to terrorism was re-issued on January 27, 2017, with a revised title.  I haven’t even had time to read  the two versions side-by-side to see what if anything has changed between the first and the second version.  This detail is telling in that it clearly shows that this administration cares little for getting things right in its rush to roll out its version of government.

This Executive Order, originally titled “Protecting the Nation from Terrorist Attack by Foreign Nationals” in its January 25, 2017, version, is now titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” in its January 27, 2017, version.

Like President Trump’s inaugural speech, this Executive Order presumes a nation under imminent attack by sinister forces that must be immediately repelled, at all costs.  This “emergency” mindset attempts to steamroll us to blindly surrender our rights and the rule of law in return for a false sense of security that the Trump administration has shown no ability to deliver.  This Executive Order halts the admission of all foreign nationals from certain countries, and then we had to hunt down which countries the President meant, because it was not provided with the Executive Order, not even as a handy addendum.  By “all foreign nationals,” this Executive Order included lawful permanent residents, as it only specifically exempted certain diplomatic visa holders.  So, if you happened to be a lawful permanent resident on, say, vacation outside of the United States when this came down initially it appeared that you too would be banned from returning to the United States for a period of at least 90 days.  The new Secretary of the Department of Homeland Security has taken it upon himself to except this category of foreign national, but until that point the Executive Order itself did not.  Can you imagine the havoc this would have wreaked on families and businesses when their lawful permanent resident family members and employees were stuck without warning out of the country for a period of at least three months?

From an immigration attorney’s perspective, let me tell you that the directives of “extreme vetting” in this Executive Order are either in place already, in terms of background checks and confirming that the applicant actually has the proper basis for immigration or admission to the United States, or are so extreme as to be unlawful or impossible to implement and still keep our system of immigration operative.  I have had clients denied visas who from my perspective clearly merited them.  I have had an Afghan interpreter who worked with U.S. Special Forces and who was cleared for that work and had a letter of support from every officer with whom he worked denied a visa, without explanation as to why for over a year and then ultimately denied on a BS reason.  Believe me, the “extreme vetting” already exists and it is a particular nightmare for visa applicants.  It is known by the banal name of “administrative processing.”  Once a visa case is stuck in “administrative processing” the chances of getting an approval or even a cogent reason for a denial shrink to almost nothing.

It is hard to even know how to begin to point out all the things that are wrong with this Executive Order.

It discriminates based on national origin, with no showing of how such discrimination is necessary to serve a compelling governmental interest, pursuant to the strict scrutiny standard of review.  Such national origin discrimination has been banned in our Immigration and Nationality Act since 1965.  There are arguments that the president has the authority to ban foreign nationals on an as-needed basis.  We are about to find out how extensive that power reaches.  Trump is like a two-year-old child here, testing how far he can push presidential authority before we push back.  What is missing, though, is how this Executive Order promotes the interests of our nation as a whole.  Where are the considered arguments for these extreme actions, the effort to persuade the nation that such actions are needed?  Instead, all we have is a a wink and a nod, asking us to, “Trust me!  I alone can and will protect you.”  Well, in a democracy we need to understand why actions are taken, and to judge for ourselves the justification for those actions, not a meaningless reassurance that everything will be fine.  We are not children to be ignored while the “adults” sink our ship.  (And another thing, under this worldview what happens if Trump becomes incapacitated?  If only he and he alone can save us then this must mean that we are all doomed without his most excellent leadership.  He is after all, in his own opinion, irreplaceable.  Next on the agenda will be a life-term presidency.  It’s the only way for us to be safe.)

The Executive Order also bars the admission of Syrian refugees who have been already been subject to the best vetting processes that our Department of State could devise.  By directing that “extreme vetting” be employed, Trump’s Executive Order implies that the vetting conducted by our Department of State personnel was unsatisfactory, without any proof.  Do you really think that any State Department officer involved in vetting refugee applications would really cut any corners or fail to follow up on any indication of fraud or criminal or terrorist involvement?  What have State Department officers been doing all this time in vetting refugees, if not performing “extreme vetting”?  What State Department officer wants to be the one who let through a Trojan horse refugee?  According to a Time magazine article published in November 2015, it takes an average of 18 to 24 months for a Syrian refugee applicant to be approved for asylum in the United States, after being referred by the United Nations.  That is up to two years of life in limbo waiting for sanctuary, in addition to the time you spent escaping from an unlivable situation.

As a nation that works in cooperation with other nations to promote peace and prosperity globally, we are subject to human rights laws and under these laws we have a responsibility to take in refugees, the most vulnerable immigrants who have lost their homes and many other valuable things on their journey to seek a safe place to re-start their lives.  To turn away refugees is to turn our back on the founding principles of America, that we are a nation of immigrants and refugees and out of that foundation we have forged one of the most vibrant and diverse societies ever known.  Immigrants are disproportionately the most active entrepreneurs in America.  They create businesses and jobs and bring new thinking and new ideas to play.  As with any group, there are immigrants who are dangerous criminals who should be punished and deported, but the rate of criminality among immigrants, even unauthorized immigrants, is lower than that of the native-born American population.  If the goal is to reduce crime rates, we need to take a good look in the mirror before demonizing immigrants if we are serious about fighting crime.

It discriminates on the basis of religion, prioritizing Christian applicants over others.  Barring discrimination on the basis of religion is a founding tenet of America.  This Executive Order treats that tenet as disposable.  It is not, and our courts will be the proving ground for this.

On a more prosaic note, this Executive Order thrusts a mammoth amount of work on to the departments that handle immigration processes, piling the requirement of report upon report on top of an already full workload.  (Do not get me started on current immigration processing times).  Complying with these reporting requirements will derail the regular workload of these departments for an unknown amount of time.  And where is the money coming from for all this extra work?  Is Congress going to funnel our tax money to the compilation of these reports so that they get done by the unreasonable deadlines in the Executive Order?  Is this the best use of our taxes?  This is what President Trump chose to do as one of his first actions in office?

Let us not forget that President Trump has been busy in other ways, ways that have been roundly criticized by experienced and respected intelligence professionals.  But that is a different topic.

 

Australia is successfully competing for skilled immigrants

Tuesday, March 22nd, 2016

Check out this Quartz article about how skilled immigrants are finding a friendlier welcome in countries like Australia and Canada, in part because of artificially low quotas for skilled workers (the H-1B category in particular) in the USA, and in part due to the hostility expressed to immigrants in general by our presidential candidates.

http://qz.com/638881/while-americans-feud-australia-is-stealing-away-immigrants-with-sought-after-skills/

 

Lawyers for detained immigrants

Friday, August 9th, 2013

Immigration law is a strange beast.  Immigration is usually civil law, with the penalty for violations ultimately being deportation, that is, not being permitted to stay in this country.  While certain immigration violations are classified as criminal offenses, the majority of immigration laws fall into the civil arena.

In the world of immigration enforcement, “detention” (a value-neutral way of saying “imprisonment”) of immigrants is all-too-common and devastating to the individuals detained and their families.  It is a deprivation of liberty, a penalty that we reserve for our most serious criminals, and yet it is used routinely for alleged immigration violations.  I’ve said it before on this forum, but it bears repeating:  Immigrant detainees are caught in a Catch-22 because these individuals are treated as criminals but not given the rights of the criminally accused.  We should either treat immigrants accused of violating immigration laws as being accused of civil violations, with civil penalties and only civil protections and rights, or treat these immigrants as criminal defendants, with the concomitant protections of the criminally accused.  Straddling the middle of these categories – given only civil protections but faced with criminal penalties – exacts a high toll in human suffering (for the immigrant and the immigrant’s family) and economic resources, as we lose the value of that person’s contribution to the labor market and spending in our economy, and imprisoning unauthorized immigrants costs us about $2 billion a year.

Immigrant advocates have long pointed out this inequity, and now a new pilot program in New York City, funded by City Council, aims to ameliorate at least one aspect of this problem.  The New York Immigrant Family Unity Project is a one-year program aimed at providing pro bono counsel to detained New Yorkers.  Immigrants in deportation proceedings are told by judges that they have the right to counsel, but only at no cost to the government.  For low-income immigrants in proceedings this is a hollow right.  It is meaningless when one cannot afford to pay for competent counsel, and finding a good lawyer from prison… Well, try it yourself and see how far you get.

Like all sectors of the population, immigrants include good apples and bad apples.  For immigrants found to be dangerous to the community imprisonment is appropriate.  But for those accused only of non-criminal violations of immigration law, incarceration often unnecessarily rips apart families, prevents a parent from being able to look after and provide for U.S. citizen children, removes a needed employee from work, and costs about $164 a day (that’s $59,860 a year) to house and feed that individual on the federal dime.  Think of this just in terms of the cost of foster care for children left without a parent to look after them ($36,000 a year in New York City), and you start to get an idea of the real costs of unnecessarily jailing those accused of civil immigration violations.  Having a good lawyer in this situation often makes all the difference, according to the 2011 New York Immigrant Representation Study, which found that the percentage of detained immigrants who win their immigration cases without representation is 3%.  Having a lawyer, and being free from detention, can increase the chances of success to 74%.

The estimated cost of providing competent counsel for a detained immigrant is $3,000.  If this is the cost of proving that an immigrant should not be detained while defending against a deportation action then it will save the federal government about $60,000 a year per immigrant, and save in the costs of families having to rely on public support systems because a vital breadwinner is incarcerated.

I will keep an eye out to see how this pilot program fares.  It is a step in the right direction and I wish it the best.

Same-sex marriage cases post-Windsor

Thursday, August 1st, 2013

You may not have heard, but an important change in immigration law happened on June 26, 2013.  On this date, the U.S. Supreme Court handed down its decision in U.S. v. WindsorThe Windsor case came up as a tax matter.  But Windsor isn’t just about taxes, although over $300,000 in federal estate taxes was at stake.  It was about the legal definition of marriage.  It was about whether a same-sex marriage can be treated differently than marriage between two people of the opposite sex.  Ultimately, the Supreme Court held that defining marriage as a union between a man and a woman violated the equal protection clause of the Fifth Amendment to the U.S. Constitution, and in doing so struck down Section 3 of the Defense of Marriage Act (“DOMA”).

This leaves the path clear for same-sex marriages to be (among many other things affected by federal law) the basis for immigration benefits, especially marriage-based immigrant visas and marriage-based adjustment of status applications.

The U.S. Citizenship and Immigration Services has, in an admirably prompt fashion, already gone on record as now accepting I-130 petitions from same-sex couples.  You can check out the guidance here.

The main thing you need to know if you want to file a petition for immigration benefits based on a same-sex marriage is that the marriage must be legally valid.  This means that the marriage must have been performed in a jurisdiction that allowed same-sex marriage at the time of the event.  This is sometimes referred to as the “place of celebration” rule.  It should not matter if you no longer live in that jurisdiction and currently live with your spouse in a place that does not legally permit same-sex marriage.

A legally valid marriage must be documented, whether by a certificate of marriage issued by a county government as is usually the case in the United States, or whatever is accepted as legal documentation of marriage in the place where it occurred.  For marriages abroad, a good place to check what documentation is considered legally sufficient are the websites for local U.S. embassies and consulates.  There is usually information for U.S. citizens interested in marrying in that foreign country, including what documents should be issued once the marriage is done.

So, for all those who thought they could not file for immigration benefits for their same-sex partners, the law has changed for the better!  If you need more help, advice, or representation in filing your application, contact Tran Law Associates about how to get your case started.

Review of “De Novo – mas alla de las fronteras (beyond borders)”

Friday, March 29th, 2013

I saw the play “De Novo – mas allas de las fronteras (beyond borders)” last night.  It was a beautiful, touching, realistic depiction of what some undocumented immigrant youth face when they are placed in deportation proceedings, produced by Houses on the Moon theater company.

There are so many different meanings of “de novo” that resonate throughout the play.  From a lawyer’s perspective, it is a term of art meaning review by a court from the beginning, without relying on prior adjudications, and assessing all evidence afresh rather than through the lens of another adjudicator’s decision.  In a more general sense, it means taking things from the beginning, or starting anew.  The play invites us to both look at the life of one undocumented immigrant youth from the beginning, and to think about the roots of the circumstances of his life, and the immigration system that we have and how it is should be reformed.  It made me think, “What controlled this person’s life?  What could he have done given his circumstances?  Could he have made different decisions?  What are our responsibilities for the circumstances of his life?  What is the U.S. government’s responsibility here?”

“De Novo” is about Edgar Chocoy-Guzman, a real person.  The play uses language taken from real documents, including letters, psychological evaluations, and court transcripts.  He was born in Guatamala in 1987.  He never really knew his father.  His mother left for America when he was an infant.  He lived in his grandfather’s house but no one really parented him.  He joins the gang Mara Salvatrucha and then leaves it, and leaves Guatemala because the gang has put a hit on him.  He joins his mother in Los Angeles and ends up joining another gang.  He is then placed in juvenile detention and then, after he has served his time, instead of being released he is transferred to immigration detention and placed in deportation proceedings, at age 15.  Knowing that he would still be a target of assassination back in Guatemala, he applies for asylum.

The scenes of immigration court proceedings were spot-on.  This is not your Law & Order polished court scene.  The court scenes in “De Novo” were just like the real thing.

There was a panel discussion after the play, and the moderator took the stage visibly emotionally affected by the performance.  I won’t tell you any more as it would spoil the play for you.  All of the actors were excellent.  The fact that the words used in the play were the actual words uttered or written as Edgar’s story unfolded in reality made the story even more affecting.  That this is a real story makes it even more immediate, compelling and thought-provoking.  This is about someone’s actual life and experience.  If you get the chance to see this, I highly HIGHLY recommend that you go.  If you know people who are hostile to immigrants, bring them along.  Let them see what it’s really like to be an unauthorized immigrant in America, instead of thinking of unauthorized immigrants one-dimensionally as nothing more than law-breakers who need to be deported.

 

Rumblings of immigration reform…

Friday, February 1st, 2013

I just read through the “Bipartisan Framework for Comprehensive Immigration Reform,” put together by a group of eight U.S. Senators, and the White House’s four-point platform on immigration reform, both statements which are (deliberately, no doubt) fairly similar in substance.

My first impression:

Good things:  both statements agree that (1) there should be a route for non-criminal unauthorized immigrants to obtain lawful status, including making amends for their unlawful actions such as paying back taxes and paying a fine; (2) our immigration system should permit individuals who have received advanced educational degrees in the United States to stay here without first getting an employer to sponsor them, thus freeing them to start businesses rather than rely upon an employer-sponsor for their status; (3) children brought to the United States without knowingly violating our immigration laws – commonly referred to nowadays as DREAMers – will face a less onerous route to obtain their permanent resident status than their parents; and (4) immigrant agricultural workers who have been paid “subsistence wages” should be granted permanent resident status, as there simply are not enough American workers for these agricultural jobs, and granting these workers permanent resident status would make them less vulnerable to exploitation by employers.

There seems to be a recognition running through the Senators’ framework that unauthorized immigrant workers are easily exploited by unscrupulous employers and thus granting these workers lawful status will, among other things, help build up stronger labor protections for workers in general.  (Of course, that brings us to a separate debate on business competitiveness when industries have to compete with overseas workers with weaker labor protection movements.)

Bad things:  The Senators’ framework makes permanent resident status for unauthorized immigrants contingent on “securing our borders and combating visa overstays.”  This statement raises the question of when will our borders be considered secure “enough”?  Another point made in the Senators’ statement restricts this class of “lawful probationary immigrants” from accessing federal public benefits, which means that while this class of immigrants would be required to pay taxes and thus fund these benefit programs they will not be able to access them when in critical need of social services.  This will create a new class of persons, with less rights than citizens or legal permanent residents.  Sounds complicated, and ripe for adverse unintended consequences.

Some of the points stated in these platforms sound great on paper but the real question is how they will be executed, such as:  Prohibit racial profiling; create an effective entry-exit tracking system so that we will know when someone who entered on a valid visa fails to depart on schedule; and provide “businesses with the ability to hire lower-skilled workers in a timely manner.”  I would love to see the “timely” part of that statement turn into reality.  Will timely mean a month?  Six months?  A year?  Two years?

The issue that faces one of the biggest implementation hurdles is creating an effective employment verification system.  As an immigration lawyer, it is difficult for me to sometimes identify the immigration status of the person in my office who has brought me all their immigration documents, and sometimes immigration officers themselves have a hard time, even with government databases at their fingertips.  The E-Verify system currently in place to verify employment authorization does not stop incorrect verifications through identity theft.  The Senators’ platform calls for an identity-theft-proof system.  A tall order.

Overall, a good start to the debate over what should be changed in our immigration system.  We’ll see where it goes from here.

Immigration Reform – hopeful and wary

Saturday, January 26th, 2013

In immigration circles there’s a feeling in the air that we may actually get comprehensive reform this year.  President Obama has clearly put his support behind it, and a small group of Democratic and Republican senators are working on hammering out a core set of principles that both sides can agree on prior to drafting any proposed legislation.

Immigration reform can mean a lot of different things, depending on what you think is wrong with the current system.  Some people think it is too harsh, penalizing infractions of law in ways that are disproportionate to the violation and tearing apart families, and in doing so often hurting U.S. citizens.  Others think it is too lenient, not holding people adequately accountable for violations or deterring future violations.  When we talk about immigration laws, we have to think about authorized immigration – the foreign nationals who come (or want to come) to the United States on visas, whether to visit, work, go to school, or who permanently immigrate here based on family ties or work skills; and unauthorized immigration – the foreign nationals who enter without inspection or enter using a visa and then overstay, becoming unlawfully present.

There is plenty of room for improvement in our existing scheme of distributing visas, especially if one thinks, as I do, that we should increase the number of authorized immigrants we permit to join our ranks.  One of the most frustrating issues in immigration is the visa quota system, which creates huge backlogs in several categories of both family and employment-based immigration.  Backlogs of two to 24 years exist in the family-based quota-limited visa categories.  Backlogs of five to ten years exist in the most popular employment-based visa categories.  (See Visa Bulletin.)  These backlogs undermine the policy considerations that created these categories of visas in the first place:  promoting family reunification and helping U.S. businesses employ qualified workers when such cannot be found in the existing pool of local U.S. workers.  The promise of family reunification or employing qualified workers from abroad becomes effectively meaningless when one has to wait an average of 12 years to bring a sister and her family to the United States, or a business has to wait six years to hire the worker it needs.

While these considerations are particularly frustrating to those of us who deal with immigration on a daily basis, the more attention-grabbing aspect of immigration is the unauthorized immigrant population.  There are an estimated 11.5 million unauthorized immigrants in the United States, according to the U.S. Department of Homeland Security.  Declarations that this population should be deported or should  “self-deport” are unrealistic to say the least.  These are people who have built their lives here, and whose children, whether born in the United States or not, have grown up here and know America as their home.  Most people left their native countries, which was no small step – leaving family, friends, everything that is familiar and dependable – because they could not see any hope in the future for themselves and their children there.  Yes, they violated our immigration laws to come here.  Yes, we should impose a consequence for that violation.  But it is unrealistic to try to identify and then lawfully deport all 11.5 million or more unauthorized immigrants.  Making life so unpleasant for unauthorized immigrants that they will leave of their own accord – well, what level of unpleasantness is enough to convince someone to return to a place where they had no hopes for their future?  And what level of unpleasantness are we willing to stomach to achieve this goal?  I think the answer is that we, as a nation, believe in human rights, and to get a person to the point where he or she is willing to self-deport would require suspending our respect for human rights.  I have to believe we are not ready to do this.

Whatever your view on the appropriate penalty to be levied for unauthorized immigration before the immigrant can get his or her green card, one unfortunate reality for this population is that its members can be uniquely vulnerable to scammers.  Many unauthorized immigrants, even those who have lived in the United States for many years, do not speak English.  (I’ve already expressed my views, as an immigration attorney, on long-term immigrants who still do not speak English in this blog.)  Those who do speak some English may still rely on media sources in their native language for news.  Already, I am hearing rumors of ethnic language newspapers reporting that a route now exists to lawful status for unauthorized immigrants.  For someone without their legal papers, including work authorization or a driver’s license and social security number, getting lawful immigration status can mean being able to bank instead of always using cash, being able to drive legally instead of relying on others or driving in fear of being stopped by the police, and being able to go to the police for help without fear of being reported to immigration authorities, among many other things.  For people in this situation, the hope of getting a green card can be used against them.  Unscrupulous ethnic “services brokers” promise that they can get the immigrant their papers if they pay a (usually exorbitant) fee.  Filing a petition for a green card when you are not eligible can result in being placed in deportation proceedings.  So the prospect of comprehensive immigration reform, including a path to lawful status for non-criminal unauthorized immigrants, while a reason for cautious optimism, also creates opportunities for hucksters to ply their trade.  For those of you who know unauthorized immigrants (which of us does not?), please tell them to be careful of promises of a “guaranteed green card” if they just pay the fee.  No such thing exists.

 

Prisons and immigration enforcement

Monday, October 1st, 2012

Here’s an enlightening article about the costs of incarceration and, incidentally, how much increased immigration detention has contributed to the coffers of the private companies that run prisons:  “Prison Break.”

The increased emphasis on immigration enforcement means keeping more people detained, which is a costly endeavor, both in money and human costs, as illustrated on this page of the Detention Watch Network website.

And for those interested in learning more about the state of immigration detention – which is supposed to be merely detention, not punishment, because individuals are held while their status is determined, NOT because they are found guilty of any crime – here’s a report on the use of solitary confinement in immigration detention:  Invisible-in-Isolation-Sep2012-detention. (See the Executive Summary for a quick overview of the findings.)

There’s lots more about this issue.  These three sources are just an introduction.

Deferred Action for Childhood Arrivals – a mixed blessing

Tuesday, September 4th, 2012

On June 15, 2012, the United States Department of Homeland Security announced the introduction of a program known as Deferred Action for Childhood Arrivals.  The new program has been both hailed as a positive step for undocumented immigrant youth, reviled as a run-around Congress by the Obama administration, and received by immigration lawyers as a mixed blessing.  The program, known as “DACA,” which started accepting applications as of August 15, 2012, would grant two years’ of work authorization and a contingent promise not to attempt to deport during that period those undocumented immigrants who, on June 15, 2012, came here before age 16, are not yet 31 years old, are attending or have completed high school or served in the U.S. armed forces, and have a clean criminal history or one that is fairly minor in character.  I won’t get into the nuances of the criminal provisions here, which could be a whole other posting.

DACA is not a statute enacted by Congress and signed into law by the President.  It is not a regulation promulgated by an administrative agency after a period of public comment.  It is a policy put into effect by the executive branch acting through its authority to choose how to implement statutes and regulations.  An administrative agency has some scope of discretion in how it enforces the statutes and regulations that govern its mission, and under the Obama administration the Department of Homeland Security has interpreted its enforcement priorities to mean that it will direct its finite resources towards violent and repeat criminals and serious immigration violators first, and put those whose only sin is having come to the United States as children – often without any choice in the matter, who have lived good lives since then and become valued members of their communities – last.

Although there appears to be some confusion about what DACA is, let’s not mislead anyone:  DACA does not provide a path to lawful permanent resident status or U.S. citizenship.  It does not even provide legal immigration status.  What it provides, and the only thing it provides, is work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation.  As I stated to Michael Matza, a reporter at the Philadelphia Inquirer, on this very issue, you get employment authorization, which is very valuable, but the downside is that you raise your hand and say, ‘Here I am,’ and give your information to the government.  Before, you were under the radar.

Another consideration is how state and local governments will respond to DACA.  Some state government officials, such as in in Arizona and Texas, have already vowed to close off state-level benefits such as driver’s licenses to DACA beneficiaries, in protest of a perceived Obama administration run-around Congress’ refusal to pass the DREAM Act.  (The DREAM Act is proposed legislation that would provide a path to lawful permanent resident status to undocumented, educated immigrant youth with clean criminal records.  If you want to read more about it, here is a good place to start:  American Immigration Council.)

To even get approved for DACA, applicants must face certain thorny issues of proving eligibility.  For undocumented immigrants who have been living quietly away from the attention of governmental authorities, and who have been leery about providing any perceived authority figure with identification information, proving that they resided or went to school in the United States at a certain time and age can be difficult.  And, of course, there will be those who do not meet the timing requirements but who will try to falsely prove that they do anyway.

The benefits, work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation, while of real value to those who have lived here most of their lives but cannot legally work in the United States, must be weighed against the potential cost of voluntarily identifying oneself to a government that may change its mind about DACA at any time.  If you read through the official statement about DACA on the USCIS website you will see this ominous sentence:  “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”

So, while DACA is a welcome addition to the immigration benefits available to those known as DREAM Activists, it is quite limited in scope and the pros and cons of filing an application need to carefully weighed before submitting the application.  Here at Tran Law Associates, we will counsel you on the benefits and costs of DACA before signing on to represent you.  Although the decision of whether to apply for DACA is, of course, your decision to make, it is our responsibility when you come to us for help to make sure that it is a fully informed decision.