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In 2012, President Barack Obama signed an executive order — Deferred Action for Childhood Arrivals (DACA) — that allowed undocumented immigrants who arrived before June 2007 when they were 16 or younger to apply for permission to remain in the United States legally for a renewable two-year period. DACA also allowed them to obtain work permits if they met certain guidelines.
DACA has given hundreds of thousands of undocumented students the ability to work or attend colleges and universities without fear of deportation, but during his campaign President-elect Donald Trump threatened to end the program. In an interview with Time magazine this month, Trump appeared to have softened his stance on so-called Dreamers, saying “we’re going to work something out that’s going to make people happy and proud.” Some activists have expressed skepticism and said they would mount a resistance to any attack on Dreamers.
Boyle Heights Beat spoke with Nelson A. Castillo, an experienced immigration lawyer and commentator, about the future of DACA under a Trump presidency. Author of “The Green Card: How to obtain lawful permanent residence in the United States,” Castillo said that too little is known about will actually happen when Trump takes office.
This interview has been edited for length and clarity.
What can happen with DACA once Donald Trump begins his presidency?
The president-elect has said that he’s going to be reevaluating a lot of immigration [policies] including DACA. Because DACA is an executive [order] by a president, a new president can come in an undo it. Because President Obama didn’t go through that [usual] elaborate process for new rules and regulations, the new president can say, well, “I can go ahead and just undo it just like President Obama created it, I can go ahead and undo DACA without giving formal notice or go through that whole process.”
President Obama tried to implement additional executive action [seeking] to expand DACA to include older individuals that had come to the United States later than June 15, 2007. The Federal government was sued successfully in Federal court [over the expanded DACA] and it went all the way to the Supreme Court and it’s currently in lower court, with an injunction that it could not be implemented. [The expanded] DACA and the Deferred Action for Parents of Americans or DAPA, those two programs are still alive because President Obama has instructed the Department of Justice to fight them in Federal court, lift the injunction and implement them. President-elect Trump can say I’m not interested in defending [them], I’m going to instruct the Justice Department to stop defending this suit, and that could be the end of it.
What should those with DACA do? Should they renew their work authorization?
DACA recipients should not panic. Individuals currently in the program have certain expiration dates that have been issued to them and those who have applied for work permits, those work permits also have expiration dates. It is yet to be seen what the new President wants to do. If he says he wants to do away with DACA, does he mean that immediately he wants everyone to go back to being undocumented, and that immediately those work permits no longer are valid? Or they could just say we’re not renewing DACA applications anymore. For those who have pending applications, they could refuse the application and give the money back for the application fees, or they can say that they’re going to continue to process those applications and if they’re approved, we will give you whatever lapse of time [is left], and that will be the end of it.
For people who are looking to renew, whose status is expiring, those individuals will find out soon if they can renew.
What about those who have never applied for DACA but were thinking of applying for the very first time?
There are all kinds of scenarios [possible] and we don’t necessarily have enough information. I’m having these conversations with my clients and I’m [giving] them all these different scenarios.
Obviously, the people who have never applied can apply at this particular moment because the program is in effect. What are the risks of applying or renewing their application? Money, number one. $465 is how much you pay the government. In addition, if you have someone who’s helping you with the legal work, all that investment you make. And you don’t know whether the government is going to approve that application.
For those who already registered with DACA, obviously all their personal information is with the government at this particular moment. The individuals who have never applied, however, the added risk is that the database becomes an easier way to identify individuals. Those individuals that have never been in the radar screen of the government, applying for the first time, you tell them about that added risk.
Are there any alternatives to DACA for any of your clients?
From the very beginning, it was known that DACA is a temporary program that doesn’t lead to lawful permanent residency, it doesn’t allow you to stay here forever, and therefore it was your responsibility, the responsibility of every immigrant, to get proper counseling from the get go.
It should be a constant process for every immigrant, if you’re undocumented, to be consistently asking that incredibly crucial question: what are my legal options? For example, some individuals are married to United States citizens or to lawful permanent residents that can petition them, and they can begin the process to attain lawful permanent residency. Through work, if there is an employer that wants to petition for them or sponsor them and they have the necessary skills and the employee has the necessary requirements needed under the law. Have they been victim of a crime?
There are all these different ways of obtaining lawful permanent residency. If they never had a discussion with an attorney they need to do it now. I understand that there is a lot of fear but they should be concerned and my hope is that the fear is not going to paralyze them, my hope is that they’re going to seek counseling as soon as possible.
Do you know of any efforts to challenge Trump’s decision on DACA? Has any group or organization said they’re going to challenge that Trump decision?
I’m not aware but I wouldn’t be surprised if [there was] some type litigation related to this. There could be the possibility that pro immigrant rights group or other individuals could decide to sue the government [to allow DACA recipients] to have the amount of time that was originally given to them.
Is it possible that Trump will not follow through on his promise to rescind DACA because it is so politically sensitive? What do you read into the political and policy conversation on this?
My hope is that President-elect Trump will find the best objective individuals who would look at our current immigration laws and advise him in an objective manner, as to whether the current immigration system is working or not. Unfortunately we live in a political world with political considerations. DACA should have never been implemented, but the president unfortunately couldn’t make law [giving] lawful residency to all these individuals if they meet requirements. There was an attempt to do that in Congress, there was thing called the Dream Act from years back, but that unfortunately didn’t go anywhere, that would create a long-term path for individuals to obtain lawful permanent residency.
I don’t want people to be in temporary programs, programs such as DACA or others like Temporary Protective Status (TPS), programs that are here subject to executive action or conditions in their home country, they’re not [leading] to lawful permanent residency. Yeah they have the ability to work, yeah they have the ability to be here legally, but it’s not lawful permanent residency. It is not sustainable to have a dysfunctional immigration system.
Trump has said he would deport a large number of undocumented immigrants when he begins his presidency. Are those with DACA at risk?
The logistics of deporting an individual in the United States is not as simple as picking them up and throwing them out. There is a process of law. Some have the ability to fight, file an immigration application that would drag out the proceedings. Immigration courts currently have an incredible workload, there’s a long process so it’s not something that’s going to happen overnight. I don’t foresee a posse of immigration agents rounding out people and putting them on a bus or train or plane and deporting them immediately. I’m sure people will find a legal way to put a stop to that.
I think the President elect has evolved in his discussion about immigration. He started with very broad statements and lately he’s been narrowing down his statements and the latest is that he’s going to focus on deporting criminal aliens.
The fact is this should not be anything new to our community. The current administration has engaged in a pattern of deporting a historical number of individuals, with a focus of deporting criminal aliens, the record is there. President Obama didn’t come into office saying I’m going to deport all these people, but went ahead and did all these deportations. The President elect is going to continue to do that, focusing on our limited resources to try to deport those who are the worst of the worst in this country, individuals with extensive criminal background, terrorists, individuals who have violated immigration laws multiple times. The 700,000 plus individuals who are currently on DACA most likely don’t have [an extensive] criminal background.
And in the meantime, what do we do with those we are not going to go after. Do we exercise our discretion, do we extend then some kind of authority to work here in the United States, make them productive, so that they can maintain themselves?
Can the federal government use DACA information to find undocumented students and deport them?
The thinking with that is that the information is [to be used] internally with the USCIS, and that it’s not for the consumption of other agencies, with the exception of individuals who have committed criminal activity or things that the government is interested in prosecuting. Everyday individuals, most likely the majority, haven’t done things that would put them in the radar screen of enforcement agencies. I believe that database isn’t something that’s going to be shared. However we don’t know at this particular moment and those individuals have already given the info, and it is what it is.
In my experience, the government isn’t going after someone who doesn’t have a criminal background. There is that possibility [but] my hope is that that’s not going to happen.
What about people with pending immigration cases? Is there need for them to be concerned?
Every case is different. It’s very unlikely that an individual who’s relying on existing law, that the president elect would be able to affect [that process]. Immigration laws can be changed [by Congress], for the better or for the worse, or remain the same.
This is a frightening situation for many people. Should they be afraid? Panicked?
I think it’s normal for some individuals to be afraid, I think it’s normal for every human being, however that being afraid should not be turned into panic so that you’re paralyzed and might not be thinking straight. You need to be proactive and should’ve been since day one, as you become of age. People may have started as children but many of them are adults now, so they need to as soon as possible inform themselves the best as possible with an immigration counselor and explore their immigration options. I always tell people that please don’t panic, please try to continue to live your life as regularly as you can, please continue to pay your taxes if you’re working, don’t get into any problems with the law.
Photo above: LAUSD students from Eastside schools during a Nov. 14 walkout. Photo courtesy of Inner City Struggle.