The words “Equal Justice Under Law” reads on the building of the United States Supreme Court in Washington, D.C. As a college kid with a hopeful heart to change the world for the better, I believed that we were all equal under law. As an immigration attorney, I know it’s more like “Equal Justice Under Law***.” Because although the U.S. Constitution applies to anyone in the United States, I now understand that it doesn’t apply the same to everyone in the United States. Some individuals are classified as “***.”
Sadly, immigrants have, historically, been the victims of the “***” under law. Children, who through no fault of their own, are brought to the United States either lawfully or have overstayed a visa are no exception to this rule.
In 2012, President Obama implemented the program known as Deferred Action for Childhood Arrivals (DACA). DACA allowed children who do not have a pathway to obtain legal status to apply for work authorization. With this work permit, the applicant may apply for a social security card and driver license. Of course with a social security card comes many benefits but one very imporant one, CREDIT!
DACA applicants, or “DACA kids” as I so lovingly refer to them, have been plentiful. With the confidence to contribute to the economy, they have created businesses, earned careers, built families, purchased properties, and so much more. They have created significant ties to the United States for themselves and for the rest of America.
DACA has not come without protesters. Protests which I, personally, do not understand, but I digress. In 2017, Trump entered the White House. An entry that has been very detrimental in all areas of immigration law (remember, immigrants are the first to be “***”). But the first immigrants to be affected were the DACA kids. Trump immediately retracted Obama’s program and did not allow new applicants to apply for DACA. Of course some tough legal battlers fought this in federal court and won an injuction to continue the program, however, this was limited. The federal court determined that Trump was allowed to exercise his presidential discretion and rescind the program, but what about the kids that already had DACA? What were we to do with the kids who had the social security card, the work permit, the driver license? We couldn’t just take it away without any warning. Slip the rug out from under them? No. Because we still have laws and we have to apply “Equal Justice Under the Law***” as best we can.
This brought into account the Administrative Procedural Act (APA). There are certain procedural processes that the government must comply with. DACA falls under the APA and, therefore, the government must have a plan in place before just taking it all away from the kids. So the federal court said “Wait for the Supreme Court to make a decision.” The Supreme Court heard oral arguments on the case over six months ago. After the Court hears oral arguments, they like to take its time to make important decisions. At the end of June of each year, the Supreme Court ajourns for the summer. They begin a new session every October (The First Monday in October).
This leads us to where we are now. At the end of the Supreme Court’s yearly session, they release the major decisions (kind of like the season finale of your favorite T.V. show). Come the end of this month, we legal nerds expect the Supreme Court to make a decision on the DACA program. But what will they do? What will happen to DACA? What will happen to these hardworking kids? One of three things, I believe.
- DACA ENDS,
- DACA will continue but only for those applicants who already in the program, or
- DACA for everyone who qualifies!
The last one is my personal favorite and least likely. The Supreme Court is currently run by conservative justices. Based on what I heard in oral arguments, I find this third option to be very far fetched.
The second option is a very real option because the Supreme Court needs to think about the economy. After all, “con dinero baila el chango.” (With money, the monkey dances). DACA kids really do contribute heavily to the economy. They create jobs, they hold high power jobs, etc. Rescinding DACA kids from reapplying would significantly hurt an already hurting economy.
But let’s talk more about what I suspect would happen if DACA ENDS…. First, these kids will not be able to renew their work permits. They will lose their jobs. They will be issued Notices to Appear (NTA). NTAs begin the deportation process. The government must give you an opportunity to fight your deportation (with certain exemptions, remember “***”). The deportation process itself is very complicated and can take many years so I won’t delve into it here, not to mention the fact that certain deportation defenses are near impossible to achieve. Most people lose their deportation defense case.
Following an inevitable deportation order, the applicant has two options, leave to a country they know nothing about, or remain in the United States “undocumented” with the constant fear of being physically removed from the United States within days time.
Despite unrealistic popular belief, DACA kids can’t “just apply for citizenship.” It doesn’t work like that. If it did, I would be very rich from people applying so easily. But I’m not rich…. So I don’t think it works like that….
First the applicants needs someone to petition for them to enter the United States as a resident. The petitioner must be a U.S. citizen or Legal Permanent Resident spouse or a U.S. citizen 21 year old child. There are others who can petition for family members, but in most instances, these two categories are the “easiest” ways to immigrate to the United States.
Most DACA kids entered without inspection into the United States (this means they did not present themselves at the border to ask to come into the United States). But how could they, most were literally in their parents arms. Imagine a 6 month old saying “Hold up mom! Don’t cross that river! It’s illegal to do so! Think of the legal ramifications!”
These kids, if they married a U.S. citizen or resident would be eligible for consular processing. File the petition, waiver for unlawful presence (maybe), consular interview OUTSIDE of the United States, and then reenter the United States. This sounds nice and easy, but it is a process that can take many years. Why? Because “***.” The Trump administration implemented a hiring freeze immediately upon entry into the White House so processing times for even the first step can take 10 months to 16 months. A year. A whole year just for that first step.
If the DACA kid entered with a visa and overstayed because he couldn’t say “Mom, it’s time to go back home! We’re about to overstay our visa!” then that child would be eligible for an Adjustment of Status. They would adjust their visa to that of a resident (green card holder). This is a one step application. BUT, the processing times are also crazy. And then you have to deal with gathering documents from many, many years ago. To apply for this benefit, the applicant MUST show that they had a legal, valid entry. Most 6 month olds don’t keep track of these documents over the years. They’re too busy growing up. Even still, this adjustment is only for people who have a U.S. citizen spouse or U.S. 21 year old child. Still a hard process. Plus you have to get through all of the “***s.”
The Supreme Court has a hard decision in their hands, per usual. They must take into account the reasons to get rid of this program, the economic consequences, and the family ties of these people who have spent most of their lives in the United States. I do not envy their decision. But, I do know how I would vote.
If you have any questions regarding this blog post or you’re a DACA kid, please contact me. I am more than happy to speak to you about your options.
