NOI 53: No DACA Renewals Under Homeland Security Memo

Immigration Attorney Jacob Tingen discusses the impact of the latest memo addressing Deferred Action for Childhood Arrivals issued by Chad Wolf, Acting Secretary of Homeland Security. We review the recent court actions relating to DACA, and how the Trump administration is failing to comply with recent decisions.

Jacob Tingen: Hello Nation of Immigrants. It’s been a while, but there’s been some recent action on the issue of DACA, deferred action for childhood arrivals, that I felt merited addressing. And so, we’re going to tackle that in today’s episode of Nation of Immigrants.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host, Jacob Tingen.

Jacob Tingen: Okay so, I’m interested to be talking about DACA, it is the hot topic right now in immigration. If you Google latest immigration news, this literally came out yesterday. It’s a memo, July 28, 2020. It’s titled Reconsideration of the June 15, 2012 Memorandum Entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. So, that 2012 memo is the initial memo that permitted the DACA program to go into place. And if you’ve been following along and, indeed, if you listened to the last episode of Nation of Immigrants, you’ll know that the Supreme Court recently said, “Hey, Trump administration, your attempts to get rid of the DACA program were ill-advised.” And so, they said that the Trump administration to get rid of DACA needs to clarify their reasons a little better, or provide a better explanation as to why they’re rescinding the program.

Jacob Tingen: They didn’t rule as to whether the program was legal to begin with. They didn’t make any decisions about immigration law, or those kinds of things. But there was a lot of interesting information that came up as the cases came before the Supreme Court. Importantly, the number of people who have received DACA status, who are healthcare workers, or are important to our fight against COVID, I believe probably was a persuasive factor.

Jacob Tingen: But, in effect, all that the Supreme court did is they said, “Look regardless of whether DACA’s legal, not legal, that’s not what we’re looking at. We believe that the justification you’ve given for rescinding the program is not justification enough.” So, they didn’t close the door on the Trump administration ultimately ending the program.

Jacob Tingen: Subsequent to the Supreme Court decision, there was a decision out of Maryland that said, “Hey, given where DACA’s at, you need to start taking new initial applications.” So, since the Trump administration first announced that they’d be rescinding DACA, deferred action for childhood arrivals, people haven’t been able to submit, what’s known as, new initial applications. So, people who would’ve been eligible for DACA have not been able to apply if they hadn’t applied previously. So, the Maryland decision recently said, “Hey, you’ve got to start taking these new initial applications.” And in response the Trump responded July 28, 2020 with this memo whose long ridiculous title I already read.

Jacob Tingen: So, what it does … well, what it does not do is it does not provide a justification for rescinding the program. All it does is say the program is under internal review, as if it’s anyone’s surprise as to the result of that review would be. I mean, they already tried to rescind at once, so what’s to review?

Jacob Tingen: And so, what’s interesting is that Trump and his administration, isn’t taking the political risk to go ahead and attempt to rescind the program immediately. They’re not saying, “Oh, we’re rescinding DACA, and now that we’ve seen what the Supreme Court has to say about it, what other courts have to say about it, here’s our legal justification,” because presumably through the course of litigation, they’ve learned how they should have outlined the reasons to rescind the program. They probably are already prepped and ready, or could reasonably be prepped and ready to issue that memo to rescind the program, if that’s what they wanted to do.

Jacob Tingen: So, the fact that that’s not what they did means that that’s not what they want to do. It’s a political maneuver. So, as one article that I’m reading here on NPR, “The Trump administration refuses to accept new DACA applicants despite court rulings.” Basically, they’re saying it’s on the ballot in November. And so, I believe that that’s accurate. They’re not going to take the political risk to rescind DACA, an overwhelmingly popular program because most people agree well, if these kids were brought here as kids from foreign countries, through no fault of their own, and they’re integrated into our society, and they graduated high school, and they speak English, they’re here. I mean, they’re part of us. And most people feel that way. And I think that the Trump administration is savvy to that, that reality.

Jacob Tingen: And so, what’s interesting is that ultimately this isn’t the death knell, but it’s laying the groundwork for the death knell. And, regardless of how the election goes, once it happens, I mean, I expect a follow up memo saying, “Hey, we’re rescinding DACA.” Of course, that’ll be wrapped up in court battles. And if a new administration comes in, maybe they’ll be swift enough to rescind that memo and keep DACA alive. Maybe they won’t. Maybe Congress will come up with a solution. Crazier things have happened, it’s 2020.

Jacob Tingen: But what’s interesting is that the changes to the program that have already been announced in this “internal review” memo are that they’re not going to be accepting new applicants, new initial applicants for deferred action in the meantime. So, they’re not going to comply with any court orders. And their excuse is, “Well, this is under review. And so, that makes the court orders moot.”

Jacob Tingen: Interestingly, on this NPR article I thought it was kind of entertaining, “When reporters asked whether the administration expects to face further litigation over the memo, the officials simply said, ‘Yes, of course.'” So, that’s kind of a state of immigration currently today, when the executive branch tries to exercise its muscle in the area of immigration people pounce, and they say, “Hey, that’s not fair. That’s not right. It’s impacting us this way and that way.”

Jacob Tingen: And, again, I’ve talked about this topic a number of times, Congress has given way too much discretion, power, and authority to the executive over the area of immigration. And so, hopefully, we can see whatever congressional action comes, hopefully, they’ll see the bad impact of making the executive too powerful has had over our immigration enforcement, maybe call some of that power back. That’d be the best result. But, I mean, as far as DACA goes, other changes include, so they’re not going to comply with the court order. They’re not going to allow new initial applicants. Advanced parole hasn’t really been a thing for a while. If you had DACA, I definitely encouraged you not to travel, even if you did manage to get an advance parole, or travel document. But those are only being granted in very limited number of cases.

Jacob Tingen: And then, this is the thing that just really bugs me is that this “internal review” process, while it’s undergoing internal review and they’re not rescinding the program, they are limiting the amount of time for which work authorization is granted. So, if you’re familiar with this program, if you’re familiar with deferred action for childhood arrivals, then you know that people are granted a work authorization document for a period of two years. Well, unfortunately under this memo, they’re going to limit that period to one year, which means that you get your card, you can apply about four months out, 120 days out, you apply and then processing times in immigration are ridiculous. And I think everybody knows that. But as far as processing times for deferred action, I should’ve pulled this up and looked at it. All I know is that, if it’s only good for one year, you’re going to go from application to getting your document to applying again.

Jacob Tingen: And I’m sure that that’s frustrating. It will be frustrating for us. It will be frustrating for our clients. So, the current processing time is anywhere between three to six months. So, let’s say, you apply you’re going to have to get your new card and then plan on applying in another four, or five, six months every year. And sure, some people might say, “Well, oh, how onerous.” Or, “That’s the world’s smallest violin,” or other sarcastic and non-compassionate things. The reality is that the entire process, the filing, the waiting this slows down and gums up all the other immigration processes that we have to do.

Jacob Tingen: This excessive just effort on the Trump administration to make each step in anyone’s immigration process as complicated as possible does not help. It does not help Trump’s goals. It does not help our nation’s goals, whether you support or are opposed to DACA, changing that two year to one year helps no one except to later engage in a blame game, which is something that the Trump administration really has shown that they excel at.

Jacob Tingen: So, that’s the state of DACA right now. We’ve got this new memo. We’re seeing how it impacts our current clients. We’re already getting phone calls. And we’re having to tell people, no, unfortunately, despite the decision that recently came out in Maryland and the Supreme Court decision, USCIS is not currently accepting initial DACA requests. If you have deferred action, you can continue to renew, but you’ll have to do that in one year increments.

Jacob Tingen: Hopefully, we’ll see the results of an election that is in favor, or more in favor of immigrants and immigration. And some of these problems, or roadblocks might get removed. Hopefully, DACA will continue to be around. Hopefully, Congress can take some action on it in the near future.

Jacob Tingen: If you have questions about deferred action or DACA, and you need to renew, feel free to reach out to our office, 804-477-1720. That’s it for Nation of Immigrants today. And we will be back with more info on all the different immigration things that are happening. Thank you for listening to Nation of Immigrants, and we will see you around.

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