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DACA & Dream Act Trump Admin. Risks Penalties For Inaction On DACA

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  • 2020-07-21 11:55:20
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It has been over a month since the U.S. Supreme Court blocked the administration from ending DACA, which gives work permits and deportation relief to young unauthorized immigrants, a decision that has been certified by the high court and issued in an official judgment Monday.

On Friday, a Maryland federal judge also ordered the government to start immediately complying with the high court's decision, which turned back the clock to reinstate DACA as it was before the program was rescinded in September 2017.

Yet while U.S. Citizenship and Immigration Services has continued to process renewals, the agency has not restarted its processing of new DACA applications for initial filers, or its processing of travel permit requests for current recipients.

The agency's failure to comply could leave administration officials facing a contempt order, or at least the threat of one, from a federal judge, according to Leon Rodriguez, who served as USCIS director for three years during the Obama administration.

"You have a court that's basically said they need to immediately begin authorizing new DACA cases and continue with DACA renewals," Rodriguez told Law360. "That's an order that needs to be executed immediately."

A USCIS spokesperson said in a statement Monday that the U.S. Department of Homeland Security and U.S. Department of Justice "are reviewing the court decision" but did not elaborate on when, or if, the full program would resume.

President Donald Trump has also indicated that he will soon sign some sort of immigration action that will include DACA recipients, but the details of that upcoming order are still unknown.

Rodriguez said that USCIS should "move immediately without delay of any kind" to carry out the court orders and restart the program.

And if the federal government starts denying DACA requests, "it's definitely a defiance of the Supreme Court decision," said Ur Jaddou, former chief counsel USCIS.

The USCIS spokesperson did not address whether applications had been denied, but said that any rejected DACA applications sent after the Supreme Court's ruling "were rejected due to their being incomplete, most commonly due to a lack of signature, missing or incomplete form pages, or an incorrect fee."

Initial DACA rejection forms recently have not stated a reason for rejections, and USCIS is "working to correct future notices," the spokesperson said. Unlike with denials, individuals whose applications are rejected are free to resubmit with the completed materials.

Rodriguez pointed to earlier sanctions handed down against President Barack Obama's DOJ in 2016 during the litigation over another deportation relief program as a "roadmap" for what the Trump administration could face if it continues to flout the Supreme Court's order.

In 2016, a Texas federal judge issued sanctions against DOJ attorneys over their compliance with an order halting the Obama-era Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, ordering the attorneys to take an annual ethics course.

DAPA, announced in 2014 to protect undocumented parents with American children from deportation, was struck down by U.S. District Judge Andrew Hanen days before it was set to take effect, during both Rodriguez's and Jaddou's tenures at USCIS. The government failed to intercept a number of deferred action and work permits that had been granted before Judge Hanen's ruling, which the DOJ later disclosed to the court.

But Jaddou said that event was far less severe than USCIS' current inaction, saying that while those sanctions were related to information provided to a lower court, USCIS is now violating a Supreme Court order.

USCIS' inaction hasn't stopped some lawyers from filing, or planning to file, DACA requests anyway.

Charles Kuck, an Atlanta-based immigration lawyer and former president of the American Immigration Lawyers Association, said he has met with hundreds of potential DACA applicants and filed about 20 new DACA requests since the high court's decision in June, including several that were sent out within a week of the ruling.

Kuck said that USCIS has yet to cash the checks for several applications he sent within a week of the ruling, but none have been rejected yet. If the agency doesn't cash the checks within 30 days, he has promised his clients he will sue the agency pro bono.

"I would imagine they're probably putting all these in a box somewhere waiting for guidance," he said.

He also questioned why USCIS is sitting on applications — and the nearly $500 fee that comes with them — when the agency is less than a month away from being forced to furlough more than half of its workforce due to a $1.2 billion budget shortfall.

"Why are they literally sitting on money and not using it?" he said.

The agency has, however, issued a receipt notice for an advance parole request, which allows a DACA recipient to travel abroad without incurring penalties, that Kuck made on behalf of a recipient who wants to visit a sick grandfather. However, he said the notice came later than usual at about 10 days after FedEx confirmed the request was delivered.

Jeff Joseph of Joseph & Hall PC said he has held off on filing any new DACA requests because he was unsure if the Supreme Court mandate was enough, or whether he should wait for a mandate from the lower court. But after the Maryland federal judge's order, he said he intends to start filing new applications soon, as well as new advance parole requests.

"It's almost more important than DACA, to be honest with you, because that advance parole is the avenue by which many of these people can seek green cards," Joseph said, referring to the process that allows DACA recipients married to U.S. citizens to leave the U.S. and return legally with a green card.

Other attorneys, however, have been hesitant to submit DACA applications before the agency announces it will take them.

"I would be more confident in filing if I saw a statement from USCIS stating that they are comporting with the rulings," said Jaclyn Kelley-Widmer, a professor at Cornell University Law School who specializes in issues surrounding DACA.

Some students are also wary of flagging themselves to the Trump administration, which has ramped up immigration enforcement and said it would deport DACA recipients if the program were ended.

"The risks are, if a person is undocumented and so far has flown under the radar of the immigration authorities, then coming forward with your DACA application — 'Here I am, please give me DACA benefits' — is essentially putting yourself in the immigration system and telling the government all of your personal information," Kelley-Widmer said.

The resumption of the DACA process could have a major impact on teenagers, attorneys said, who were too young to apply before the Trump administration rescinded the program but who have lived in the U.S. continuously since 2007. Kuck said many of those he has spoken with were born between 2001 and 2006, and many were babies when their parents brought them to the U.S. illegally.

Immigrants who were 14 when DACA was rescinded — one year shy of the minimum age to apply — are now preparing to start their freshman years of college.

"This whole group of young people is essentially the very same people who are entering universities for the first time this fall, and for the next several falls," Kelley-Widmer said. "We are going to see a lot more students who are completely undocumented, even though they would have been eligible for DACA."
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