Today, I wanted to talk about something that comes up pretty often in my consultations:…
When Donald Trump takes office in January, what will this mean if you have DACA? The bottom line is this: it could be very bad.
Update (Jan. 26, 2017): Trump is reviewing an Executive Order that will end DACA. Read more here.
Remember what DACA is.
Deferred Action for Childhood Arrivals (DACA) was a program created by the Obama administration. Unlike most other immigration programs, it was not created by congress. Technically, DACA is not a law; instead, it is a policy created by President Obama.
If you are enrolled in DACA, you have a work permit and a promise from the government that you will not be placed into deportation proceedings. Both of these are at risk starting in January. Because President Obama – not congress – created DACA, a President Trump could take it away.
Will President Trump end the DACA program?
Donald Trump has constantly said that he plans to take strong action against what he calls “illegal” immigration. The DACA program was created specifically to help those who came to the United States as children, but did so without a visa or else overstayed their visa. Trump probably sees DACA as a program that benefits immigration violators. For this reason the DACA program is very much at risk.
There is a substantial risk that Donald Trump will end DACA after he takes office. Because DACA is a presidential policy, Trump could likely end DACA very quickly. He could potentially sign an order ending DACA the day that he took office. It would likely take some time for the immigration agencies to implement his directive. But the bottom line is that DACA could end very soon.
Will President Trump cancel my DACA?
If you are already enrolled in DACA, President Trump could potentially cancel your DACA. But that is probably relatively unlikely.
It would be very politically difficult for Trump to snatch away DACA from those who already have it. It would also be potentially illegal. Under legal rules including the “vested rights doctrine,” the government usually cannot give you something, then just take it away.
Will I be able to renew my DACA work permit?
As described above, there is a strong possibility that the DACA program will end. If this happens, those who currently have DACA will not be able to renew their work permits. Those who gained work permits through DACA can renew them only so long as DACA remains a policy. If DACA is ended, the ability to renew work permits ends, too.
Could I be deported when Trump becomes president?
This is one of the saddest questions to address. When you received DACA, part of that was a promise from the government that you would not be placed into deportation proceedings. But if DACA end, so does that promise.
Basically, by definition, anyone enrolled in DACA could have been placed into deportation proceedings. Overstaying a visa, or having entered the US without a visa, is a basis for being deported.
The Obama administration looked at DACA enrollees and said: “this is a group of people who doesn’t deserve to be deported. They were brought here as children and have stayed out of trouble.” But Donald Trump does not have to follow that same reasoning.
Trump has said before that he plans to deport all “illegal” immigrants. If he follows through with that statement, those with DACA will be at real risk of deportation.
Trump would not have the authority, however, to automatically deport those with DACA. Instead, the government would have to follow the normal procedures, which generally means being placed into immigration court. Once in immigration court, there may be defense available, such as cancellation of removal.
What should I do now if I have DACA?
If you are currently enrolled in DACA, now is the time to talk to a lawyer and understand what options you might have.
For example, if you are married to a United States citizen, you might be eligible for a greencard, even if you entered the country illegally. Some with DACA are eligible to apply for something called advance parole. This allows them to travel abroad briefly, then return. Once back, they have a lawful entry and can they pursue adjustment of status based on their marriage. Applying for advance parole typically takes months, but sometimes it is possible to apply on an emergency basis. If you are married to a U.S. citizen you should look into this option today. Not tomorrow.
Others with DACA should explore whether they may be eligible for other forms of benefits such as U-Visas (crime victims) or T-Visas (trafficking victims). You may also want to start planning for the possibility that you could be placed into deportation proceedings. With advance planning a lawyer can help you identify the defenses that might be available to you, and begin gathering appropriate evidence.