By Marisol Conde-Hernandez, Esq.
Sure, I’m thankful for employment authorization, a limited Social Security number, and the collateral benefits flowing from them, like a driver’s license and eligibility for that COVID-based federal stimulus check. But I’ve had mixed feelings about DACA since its announcement on June 15, 2012. I wasn’t excited, I was skeptical- so skeptical and resistant I did not initially apply until over one year later.
You see, I did not “need” DACA. I had already accrued over a year of unlawful presence, I had been working continuously since the age of 16, and I had already graduated from Rutgers University in 2011, after six years of paying the costs out-of-pocket, assisted with a combination of academic and community scholarships.
And I was skeptical because I understood DACA was the absolute least the federal government could do. Young people like me had mobilized around the DREAM Act since its introduction in 2001. I had followed the legislation since its introduction and kept up with the informal, growing network of young, undocumented activists advocating and organizing for its passage. I contributed however I could. Specifically, I publicly advocated for a NJ In-State Tuition Bill and for the DREAM Act by sharing my narrative, and I was the first one in this state to do so, and at such a large scale.
I knew activists had lobbied and pressured the Obama administration for two years before he ceded to their demands for temporary deferral of our deportation. We went from exhorting a path to citizenship to acquiescing to temporary deferral and related benefits.
DACA, which has facilitated real opportunities for many recipients and their families, engulfed a significant chunk of immigrant efforts and resources to the detriment of the broader and more vulnerable noncitizen community. DACA also made many complacent.
I already began attending law school when my initial DACA application was approved, and when a couple of months later, my esteemed peers successfully secured the passage of the NJ In-State Tuition Bill under a Republican governor. Now a practicing attorney, I have secured lawful permanent residency for several DACA recipients. I represent some in removal proceedings who would otherwise would have been eligible for DACA.
I want DACA recipients and supporters alike to understand DACA is temporary; DACA is “chump change,” and the SCOTUS’s June 18, 2020 decision in DHS v. Regents of the University of California is not a “victory.” The majority carefully followed stare decisis to hold SCOTUS had jurisdiction to review DHS’s termination of the program and that the termination was unlawful under the Administrative Procedures Act. In other words- the Court did what it was supposed to do. The dissenting opinions read like it had been fed scripts from Fox News.
It is worth “celebrating” the Court did not rule the other way, agreeing that termination of the program was not arbitrary and capricious. This is, I think, what many expected. Such a holding surely would have immediately reinstated termination of the program and resulted in our eventual placement in removal proceedings. I get it- I am still not eligible for lawful permanent residency nor relief from removal. But I understand and I exhort everyone to understand that this decision is a sigh of relief at most.
What comes next? We don’t know.
SCOTUS’s ruling means DACA’s termination was not lawful and thus the program should exist as it did before June 2017. In theory, USCIS should resume accepting and processing initial DACA applications as well as requests for travel on Advanced Parole. But, in my almost-five years of experience working with Eric M. Mark and in my almost-two years of experience as an immigration attorney under the Trump administration, I know USCIS does not always do what it’s supposed to do.
I also know DHS can propose a new rule to terminate or otherwise modify DACA, like by terminating the collateral benefits associated with deferral, as soon as Monday, June 22, 2020 if it wanted. Is it likely to happen so soon? I don’t think so- DHS will have to carefully study and extract Chief Justice Robert’s words to craft reasoning and procedure more likely to survive future litigation.
This also isn’t the end of litigation over DACA. The Supreme Court case was made up of three cases out of the federal courts of Washington D.C., New York, and California, and the Supreme Court sent those cases back to the lower courts for further action in light of its decision.
Therefore, in my personal and professional opinion, as the only undocumented immigration attorney in the State of New Jersey, the only safe action now is for current DACA recipients with no criminal history to submit their renewal applications if they haven’t already done so.
Everyone else should wait and consult with licensed attorneys with extensive immigration experience to determine if they are eligible for affirmative or defensive relief now or in the near future, especially if you have ever had to go to any court for any reason anywhere in the world, even if and especially if you have applied for expungement of those records.
This, of course, is my individual professional opinion. I do not expect all attorneys to agree with me. Some will recommend or already have recommended sending in initial DACA requests. But I know how difficult it is to come up with the $495 filing fees, and I know what’s at stake. Why disclose your identity, fingerprints, and address to USCIS & ICE if within a matter of days or weeks or months, USCIS chooses to reject, fail to timely process, or outright deny those applications anyway? Why do so prematurely without any confirmation of how DHS will proceed? And why do so without exploring whether you have anything else available to you at all?
I repeatedly tell clients and consultations to be wary of something that sounds too good to be true. It usually is. Unfortunately, there are attorneys, and people who are not attorneys but pretend to be, who claim to want to do good, but who motivated only by profit. Many will use your circumstances to sell you hope for “work authorization” or “ability to travel.” This I will cover in a separate post on my Instagram (@mcondehernandezesq) and on my Facebook page (@undoculawyernj) by July 1st.
For now, save money, stay out of trouble, consult with honest, qualified, experienced attorneys, and plug into local community groups that have continued to work on real relief for the immigrant community.