Tag: DREAM Act

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DACA codified – what you need to know

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The codification of the Deferred Action for Childhood Arrivals (DACA) is finally in effect as of October 31, 2022, through the published DACA Final Rule of the Biden administration.

What does this mean for Dreamers? Well, for many, it means things will remain the same. This is good news to some and bad news to others.

Let me explain.

On October 6, a federal appeals court ruled that DACA was illegal, but it kept it intact – mostly because of the Biden administration’s codification.

The Biden administration codified DACA through the Final Rule in order to find a way to keep it from being struck down. This was to replace the implementation of DACA only through the legally challenged memo from the Obama administration.

Now, what does this mean for DACA beneficiaries and applicants.

The good news is that DACA renewals will continue. 

It clarified that expunged convictions, juvenile delinquency adjudications, and immigration-related offenses seen as felonies or misdemeanors under state laws won’t automatically mean disqualification from DACA.

It added that work authorizations obtained through DACA will only be revoked only after the termination of the DACA status and not at the beginning of deportation proceedings.

The bad news is that new applications still won’t be processed.

Beneficiaries who have been approved for the program could continue to renew. It is advised that beneficiaries renew regularly and on time because DACA continues to be under legal challenge and there is a real possibility that it will get paused in toto.

The recommended time to renew DACA is 150 to 180 days before expiration.

If you let your DACA status expire, you won’t be able to renew it because it will be considered a new application.

To navigate through this DACA dilemma and to find alternate ways to seek permanent status, consult a trusted immigration lawyer.

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Updates

What the Biden admin has prepared and is doing for Dreamers

What the Biden admin has prepared and is doing for Dreamers
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With the Deferred Action for Childhood Arrivals (DACA) program still in limbo, the Biden administration has been on the move to prepare for the worst.

By worst, it means the halting of DACA. 

So far it has been declared illegal by at least two courts, but it will be reevaluated by a Texas judge to take into account the Biden administration’s new rules codifying the program.

Now what will happen if it still gets struck down all the way to the Supreme Court? Here’s the Biden government’s plan.

A big order is that if DACA recipients are to be deported, they will be deprioritized, especially if they are not deemed as threats to public safety and national security.

The problem with this order is that if Biden is replaced, he a new president can just simply undo this policy and reprioritize deporting DACA recipients who no longer have protection from deportation.

More upfront, the Biden administration has been urging lawmakers to pass a law that will provide DACA recipients a path to citizenship. As these recipients are called Dreamers, Congress has been called to pass a DREAM Act.

The problem with passing laws, however, is that it needs a broad enough support for it to materialize – which it currently does not have.

This has forced lawmakers to be creative with their proposals for Dreamers.

For example, Representative Ruben Gallego from Arizona has introduced a bill that would allow for Dreamers to gain citizenship through military service. This is widely seen to not pass.

With Dreamers continuously in limbo, the power still rests in the courts whether DACA will continue. This is unless the Biden administration takes more active measures to protect Dreamers.

Unsure about how this affects you or a Dreamer you know? Consult your trusted immigration lawyer.

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Updates

The court ruling that could end DACA

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The Biden administration released a final version of a rule to strengthen the Deferred Action for Childhood Arrivals (DACA) to protect Dreamers, but the program is still endangered as a court reviews whether to strike the program down.

The legality of DACA is currently being reviewed by a three-judge panel from the Fifth Circuit Court. They heard arguments in July 2022, but are currently deliberating on its ruling.

Many believe the court will take down the program, which means the loss of opportunity for tens of thousands of aspiring Dreamers – the loss of work, education, and the chance to stay in the United States.

According to advocates, around 22,000 jobs will be lost per month with the termination of DACA. 

To protect Dreamers, Congress needs to pass legislation to create a way for them to get citizenship. 

If the DACA does get terminated through the Fifth Circuit Court’s ruling, however, it does not mean that it is the end for Dreamers.

The government can still appeal to the Supreme Court, where the legal battle can continue for longer, meanwhile leaving Dreamers longer in limbo about their status. 

Unsure about how this will affect you? Consult your trusted lawyer.

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10 years since DACA: Is there hope for Dreamers?

10 years since DACA…Is there hope for Dreamers?
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It has been 10 years since President Barack Obama enacted DACA or the Deferred Action for Childhood Arrivals through an executive order.

The policy survived a Republican Administration and has been defended by the Supreme Court.

But in July 2021, a Texas court ruled the policy to be illegal. It is now under appeal while the government has been instructed to stop granting initial requests for DACA.

DACA was originally intended to only be a “stopgap measure”, but 10 years on, DACA is still not backed by any law that would allow its recipients – the Dreamers – for a path to citizenship, leaving hundreds of thousands of immigrants in limbo.

Without DACA, immigrant children who entered the United States who are now adults find it almost impossible to find work and education opportunities. They also face the threat of deportation.

President Biden should fully reinstate the DACA program and make it fairer and more accessible by modifying criteria based on age, residency, education, and past criminal activity.

What happened to legislation?

Different variations of a DREAM act have been introduced at the House and the Senate, but none have ever reached the President’s table.

Based on a 2020 Pew Research Center survey, 74% of U.S. adults say they favor a pathway to citizenship for young people brought to the U.S. illegally as children. The vast majority, 91%, of Democrats or those who are Democratic-leaning, support permanent residency for Dreamers, while 54% of Republicans or those who are Republican-leaning say the same.

But translating public support to legislation has been tricky.

President Biden himself pushed for the US Citizenship Act, which promised a path to citizenship for 11 million undocumented immigrants and their families. However, it remains stuck in Congress, and analysts say it only has a slim chance of passage unless Biden offers a compromise.

President Biden’s deadline could well be the 2024 midterm elections, which has so far been predicted to deliver an upset to his party, further trimming down the chances for his immigration policy.

What now for DREAMERS?

For young immigrant Filipino Dreamers, there is always hope that this DACA program would become legislation and would provide a pathway to citizenship. So in the meantime, for those who were able to apply prior to the District Court injunction, you can continue to renew your employment authorization documents and work legally. For students, continue to pursue your studies to completion as the government will always prioritize highly skilled or professional workers for immigrant resident visas. There are States that do not ask about legal status for students to attend post secondary education, so it is advisable to pursue their studies if they can and explore opportunities when the right time comes.

Unfortunately, those who are no longer allowed to apply for DACA because of its limited eligibility, let us continue to lobby and advocate for the passage of legislation that will either extend the coverage of DACA to benefit more DREAMERS or a legislation that will make DACA a legislation with opportunity to become U.S. citizens.

Each case is different, however. For tailored legal advice, always seek professional help from a legal counsel.

To push for legislation, call your respective lawmakers and urge them to support a Dream Act that will provide resident permanent status and citizenship to all undocumented young immigrants.

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Updates

Latest Court Ruling Orders USCIS to Accept New DACA Applications

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After President Trump announced the termination of the Deferred Action for Childhood Arrivals (DACA) on September 5, 2017, several lawsuits were filed questioning the validity of the termination. Two court injunctions were already issued by the federal courts in San Francisco and New York ordering the USCIS to continue accepting renewals for the DACA protection. On April 26, 2018, another federal court in the District Court of Columbia also issued an injunction against the termination of the DACA program. With the latest injunction the court ordered USCIS to also accept new DACA applications.

Who will benefit from this latest court ruling?

Joshua entered the United States when he was 7 years old. When the DACA was announced in 2012, Joshua was only 10 years old. When Joshua turned 15 in December 2017, he was not allowed to apply for a DACA application. No new DACA applications were accepted after the announcement of the termination of the DACA protection in September 2017. This is the reason why Joshua has not applied for the DACA protection. Last week, Joshua heard about this new court ruling and wants to apply for the DACA protection and for an employment authorization card. What can he do?

Requirements for DACA

DACA was available to any undocumented young immigrant who:

  1. came to the United States when she was under the age of sixteen;
  2. had lived in the United States continuously since at least June 15, 2007;
  3. was enrolled in school or had graduated from high school or been honorably discharged from the military;
  4. had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and
  5. was under the age of thirty. Young immigrants who are out of status, who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States.

Termination of DACA and the Lawsuits

On September 5, 2017, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA program. USCIS would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018.

On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program. As a result, the USCIS issued guidance that they are accepting renewal applications.

On April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court ordered DHS to accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond. The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply.

After 90 days, Joshua will be able to file for a new DACA application as per order of the U.S. District Court by proving that he meets all the above eligibility requirements. While this is a positive development, DACA is only a temporary program and its future is very uncertain. It would be best if there will be a permanent path to citizenship for the Dreamers. At the moment, there are several bills before the U.S. Congress addressing this issue. The most appropriate bill that must be passed into law is the Dream Act (HR 3440 and S.1615). If passed into law, it will provide a path to naturalization to Dreamers after 5 years in conditional permanent resident status.

(Atty. Lourdes S. Tancinco is a San Francisco-based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

Proposed Bills that Make Immigrant Families Vulnerable

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The year 2017 has been challenging for most immigrants. Many Filipino immigrants have been concerned with changes in federal policies and how it is affecting families and employment. The following developments have given reason for apprehensions about the future of U.S. immigration:

Attacking Family Immigration

A bill known as the Reforming American Immigration for a Strong Economy (RAISE) ACT seeks to cut current legal immigration by at least 50%. The serious impact of this bill is in the big reduction of family member categories who can be petitioned, including the limitation of qualified family members only to minor children and spouse of the U.S. citizens. Under the RAISE proposal, parents, adult married or unmarried children and siblings of U.S. citizens petitions are no longer relatives who can be petitioned. In addition, the age of minor children will be reduced to those who are under the age of 18 (from the current 21). For millions of Filipinos who are beneficiaries of family petitions, this bill will be a disappointment for families who have been waiting decades for reunification with their family members. This is definitely a bill that will not bode well for family unification.

Merit-Based System

Without taking into account family unity and the needs of businesses, the RAISE Act proposes to eliminate the current employment system of immigration. It prioritizes skills over family unity by designating a point system for future immigration applicants.

Heightened Enforcement

In his first month in office, Trump released his Executive Order on Interior Enforcement where he ordered changes that now prioritizes enforcement. He ordered for a budget that hires more than 10,000 Immigration and Customs Enforcement (ICE) Agents that may result in mass deportations. An enforcement only bill H.R. 2431 was introduced by a certain Rep. Labrado (R-ID) that dramatically expands immigration enforcement and criminalizes undocumented immigrants.

Fixing DACA

Young unauthorized immigrants are looking forward to legislation that will provide solution to their predicament given the termination of the DACA program in September of 2017. The DREAM Act was the bill that directly addressed this issue and provided for a permanent solution by granting conditional permanent status to DACA beneficiaries and allows them to become U.S. citizens in 5 years. Other bills like the SUCCEED Act also provided a permanent status but comes with restrictions. Under those bills, Dreamers will be prohibited from sponsoring their children and spouses in order to prevent chain migration. There were also provisions that compel Dreamers to sign away their rights to any immigration benefit or relief like immediate deportation without due process if they commit minor crimes such as driving without license or shoplifting.

All the above bills are contained in the White House Principles on immigration and obviously will have negative impact on many immigrants. The most disheartening proposals are the attacks on family….. the foundation of this nation and the policy behind our immigration law. Our community must continue to advocate for what is right and bring the message to our legislators in their home district this holiday season to support immigration bills that are humane and value family unity instead of forcing them apart.

I waited until December 22 to write about an immigration update hoping that I would bring the good news about a positive development on the DREAM Act. Those who are beneficiaries of the Deferred Action for Childhood Arrivals will have to wait until January 2018 to find out whether or not Congress will pass the DREAM Act which is the permanent fix to the DACA program for young undocumented immigrants. This holiday season will still be spent with uncertainty hanging over the future of DACA recipients. While this is a disappointment to many, I am still positive that with hopeful bipartisan support in Congress, there will be an opportunity for passage of the DREAM Act early 2018.

This Christmas, my wish is for more (not less) family unification; and, for the leaders of this country to realize the value of families and its contribution to the strength of our nation.

Merry Christmas to one and all!

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Updates

End of DACA puts at risk up to 6,000 young Filipino recipients

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There are approximately 22,000 young Filipino immigrants who are eligible to apply for benefits under the Deferred Action for Childhood Arrivals. Only 27 percent of those eligible applied, or approximately 6,000. The rest of these young Filipino immigrants continue to wait for permanent solution to their status. With the announcement that President Donald Trump is ending the DACA program will those who took advantage of the DACA program be arrested and eventually be deported?

Unfortunately, those who are just in the process of filing their DACA applications for the first time, will no longer be able to do so. This will affect those who just became eligible to apply for DACA and those who took time or postponed the filing of their DACA applications despite the fact that they were eligible. After September 5, 2017, USCIS will no longer accept new DACA applications.

Future of DACA recipients

There is a short window afforded to existing DACA recipients to renew their expiring DACA employment authorization documents (EAD) if these EADs are expiring between September 5, 2017 and March 5, 2018. The request for renewal and application for employment authorization document must be received by U.S. Citizenship and Immigration Services no later than October 5, 2017. This is an important deadline because USCIS will reject all requests to renew ACA and associated applications for EADs filed after October 5, 2017.

Once the application for renewal is adjudicated, USCIS is expected to renew it for another two year period or until 2019. Unfortunately, for those whose DACA benefits are expiring after March 5, 2018, once their employment authorization document expires, USCIS will no longer be able to accept and adjudicate their applications for renewal. This means that beginning March 6, 2018, there will be DACA recipients who will be deprived of their protected status and will be reverted to their unlawful status.

Will DACA recipients be deported?

It was clearly mentioned during the announcement by Attorney General Jeff Sessions that the DACA recipients are not considered priority for enforcement. While this may sound favorable, there is no guarantee that ICE will not issue Notices to Appear for removal hearings. The USCIS confirmed that it will not share information obtained through DACA applications with the ICE agents. However, it is important to note that unless ICE is requesting that information based on certain factors like national security, public safety and fraud, the information may still be shared for enforcement. It will still be best for this DACA recipients to be vigilant about their situation and to be familiar with their rights especially their rights to a hearing and their right to counsel.

Congressional action

Terminating the DACA program within 6 months will afford the U.S. Congress time to enact a law benefitting the DACA recipients. At present there are two bills pending, the Dream Act (S.1615) before the Senate and the American Hope Act (H.R.3591) before the House of Representatives.

If these bills are passed into law, it will provide permanent solutions to protect DACA recipients and give them a pathway to lawful status. These young immigrants will have to take steps to ensure that they are safe from removal.

We also encourage compassionate members of our community, who believe that DACA recipients deserve a chance to build their lives in the country they call home, to work together towards the passage of the Dream Act by contacting their representatives in Congress.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Global Pinoy

Should ‘TNTs’ start planning for voluntary departure from US?

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More than 11 million unauthorized immigrants in the United States, including approximately 300,000 from the Philippines, are now in panic mode and uncertain about their future under a Trump administration. Deporting immigrants who are in unlawful status is one of Trump’s campaign promises.

The presidential election result was a bitter pill to swallow for most immigrants. Most of the Filipino American immigrants in the San Francisco Bay Area are not happy with the result of the election. Immigration attorneys have received many phone calls and emails from concerned immigrants, both legal as well as those who are undocumented, asking about the immediate threat of removal from the US come January 20, 2017.

Lawful permanent residents or those with status are seriously concerned about pending petitions for their family members. Will the petitioning process take longer with the coming Trump administration? Those who are in possession of professional working visas are worried about whether the H1B program will be eliminated. Filipino healthcare workers such as registered nurses, physical therapists and caregivers with pending immigrant petitions from US employers have no clue on whether their visas are still going to be issued if immigration policy changes.

The most vulnerable immigrants who are most likely going to be affected are the DREAMERS (children who were supposed to benefit from the Development, Relief and Education of Alien Minors or the DREAM Act) and the DACA (Deferred Action for Childhood Arrivals) recipients. These are the young immigrants who came to the United States when they were below 15 years old and who are still present in the US as young adults without legal status.

For the last eight years, President Obama has supported a DREAM Act that allows these young immigrants to have lawful status, but the bill failed to pass in Congress. Using his executive power, he released a program called the DACA where thousands of young immigrants were given temporary employment authorization cards to allow them to live without fear of deportation and enabling them to work temporarily. Thousands of young Filipinos availed of this program. Their names and information are in the current system of the Department of Homeland Security. They fear not just losing their DACA status, but also about their parents who may be subject to removal.

After listening to the interview of President-Elect Donald Trump on “60 Minutes,” it appears that he also has priorities for dealing with immigration. He explicitly mentioned the immediate deportation of three million undocumented immigrants. Also, he confirmed that border security would be tightened and then removal of undocumented with criminal records would be next. Prioritizing border security is paramount on his agenda as may be assumed from his campaign plan of building a wall in the US-Mexico border.

If Trump follows through with his public statements, those who are in unlawful presence or TNTs including the DACA recipients are not (yet) in danger of immediate deportation. While there is no immediate threat at the moment, they have to be mindful of their activities, be familiar about their rights and keep in their immediate possession whatever legal documents relating to their immigration history in this country.

Most importantly, this vulnerable population must be able to distinguish between real and fake news on immigration. At the present time, it is easy to fall victim to false information on social media because bigotry and hatred are on the rise against minorities and immigrants. Be very vigilant.

(Atty. Lourdes Santos Tancinco is a San Francisco based immigration attorney and immigrant advocate. She may be reached at law@tancinco.com, 1 888 930 0808 or visit her at facebook.com/tancincolaw or tancinco.weareph.com/old)

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Global Pinoy

US high court’s one-line ruling only a temporary defeat for DACA+

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“The judgment is affirmed by an equally divided Court,” this is the one-line ruling of the highest court of the land in the much awaited decision on Obama’s Executive Action on DACA extension and DAPA program. After more than two years of waiting for the injunction to be lifted on the programs and looking forward to a decision on the merits, immigrant rights supporters were disappointed when the Supreme Court laid out its ruling in a deadlock vote of 4-4. But it’s only a temporary defeat; there are still legal ways to move forward with the executive action.

Jose Antonio Vargas, a Filipino national, is the most outspoken advocate of the DREAM Act and the Deferred Action for Childhood Arrivals (DACA). In 2012 when President Obama announced the DACA program for the first time, he was not included on the list of those qualified to apply even if he was only 12 years old at the time of his arrival in the US. The first DACA program in 2012 included a requirement that the applicant must be below 31 years old at the time of the application for deferred action under DACA. Jose just turned 31 years old in 2012 and lost the opportunity to apply for DACA.

His hope of getting temporary relief under DACA was revived when in 2014, President Obama announced the DACA+ and the DAPA executive actions. For the DACA+ program, the age ceiling of 31 years old was eliminated, maintaining only the minimum age requirement of 15 and below at the time of entry into the United States. Jose would have qualified, but the anti immigrants would not allow the DACA+ and the DAPA program to push through. Conservative states filed a lawsuit against the Obama administration, and a 5th District Court Judge issued an injunction against its implementation.

The litigation reached the Supreme Court, and there was a hearing on the merits. Unfortunately, on June 23, 2016, the Supreme Court did not issue a decision, but rather announced a per curiam ruling stating that the court was divided and that the judgment of the lower district court is affirmed.

The arguments in favor of the DACA+/DAPA Executive Actions seemed to make more legal sense during the hearing. It obviously did not turn out that way. The split in the evenly divided Supreme Court shows the sharp ideological divide between the factions in it. The feeling is that it is a politicized court with an ultra-conservative right and a liberal left-wing faction.

Had Justice Scalia not passed away recently, the conservatives would have had a clear victory. On the other hand, had Congress done its job and voted on President Obama’s replacement for Justice Scalia’s seat in the Supreme Court, it would not be inconceivable that the DACA+/DAPA Executive Actions would have been upheld.

To put this in perspective, this is only a temporary defeat for the immigrants. There are still legal ways to move forward with Executive Action as no decision on the merits was issued. But to initiate a new action would take time, which the current president no longer has. Come November 7, a new president will be elected. Whoever is elected as the next president gets to nominate the next Justice for the Supreme Court vacancy. That single appointment can tip the balance of the Supreme Court’s ideological divide to the left (or to the right) for years and years to come; hence, the importance of voting for the right president in the coming November election.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)