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JANUARY 27, 2017 INDIA ABROAD 35 IMMIGRATION
By Allen E. Kaye
Continuing from last week, answers to questions involving immigration under a new administration.
In 2014, the Obama administration attempted to expand
DACA eligibility, but a federal court prevented it from
doing so on the day it was to go into effect in 2015. So,
today on our campuses there are: (i) individuals who have
DACA status; CO individuals who have DACA applications
pending; (iii) individuals who would have been eligible for
the expanded DACA; and (iv) other undocumented individuals who never were going to be eligible for DACA.
What would the end of DACA look like?
Since DACA is not codified by law or regulation, it can be
modified or rescinded at any time by the new administration. If that happens, one approach could be a gradual
phase-out by approving no new applications and granting
no DACA renewals for individuals now in DACA status.
Completely rescinding DACA for nearly 750,000 young
people could have more immediate implications for those
who possess DACA status, including DACA students currently employed by institutions. USCIS could begin a formal process of revoking current employment
authorization documents issued to DACA recipients (or
perhaps it would take a more practical approach and simply let them expire). Upon revocation or expiration, former DACA students would lose their work eligibility.
Furthermore, without DACA status, former DACA recipients could be ordered to appear in federal immigration
court to face deportation. As a practical matter, however,
this would be a major undertaking for deeply backlogged
immigration courts, as well as for under-funded and
under-resourced immigration enforcement officials.
Importantly, no specific plans for ending DACA have
been proposed by President Trump to date, and it is far
from clear that the new administration will prioritize immigration enforcement against DACA students (if DACA
were rescinded) or other undocumented students. Indeed, the president recently said that his administration
will focus deportation efforts on criminal immigrants. The
Obama administration had the same priority, and even
with unprecedented resources that effort has taken years
and still has far to go.
What might be sensible for DACA students to consider
doing now, and how can institutions be supportive?
The possible changes to DACA could have serious implications for DACA students studying abroad. If DACA were
rescinded while a DACA student is out of the United
States, there may be no way to return. Anyone with DACA
status studying abroad for the fall semester or temporarily
out of the country during winter break should make plans
to return to the United States before the new administration takes office on January 20, 2017. DACA students who
intend to study abroad next semester should fully understand the risks of leaving the country; they should be encouraged and supported to make alternative in-country
plans. Institutional study abroad advisers should be certain that every DACA student is aware of the uncertainties, advised regarding other educational opportunities on
campus or elsewhere within the United States, and assisted in obtaining refunds as necessary.
DACA students who are within 180 days of the end of
their status period are eligible to apply for renewal of their
status, and may do so now. However, processing times for
renewal applications filed today are well over two
months; there is no guarantee that the new administration will continue to grant DACA renewals, and the application fee is $465. Some institutions have considered
providing or identifying funding for these applications;
however, this requires having a careful eye on state law
(particularly for public institutions) and other potential
restrictions on private use of institutional funds.
Assuring that DACA students and other undocumented
campus community members know where to turn for
knowledgeable, accessible, and affordable legal advice
can be helpful. ImmigrationLawHelp.org is an online di-
rectory of nearly 1,000 free or low-cost nonprofit immi-
gration legal services providers in all 50 states. Its
website1 is searchable by state, county, or detention fa-
cility, and searches can be refined by types and areas of
legal assistance provided, populations served, languages
spoken, other areas of legal assistance, and non-legal
services provided. Institutions might assess whether
there is a practical and beneficial means of identifying and
publicizing pro bono on-campus or alumni legal services
with expertise, or making funding available for individual
legal consultations, consistent with the potential restric-
tions on private use of institutional resources noted
above. Timely and informed advice and representation
can be critical.
Institutions should ensure that student health and
counseling services are alerted and prepared to address
the needs of DACA recipients and other undocumented
students who may find themselves physically or emotionally challenged, particularly since many grew up with the
fear of deportation.
DACA students who are on an educational and training
path that requires employment authorization documents
should evaluate backup options. For example, medical
students will not be able to do residency training without
the appropriate documentation.
Is there anything-preventing ICE or CBP from using an in-
dividual's DACA data to facilitate their deportation?
Current USCIS internal policy indicates that DACA data
will not be disclosed to ICE or CBP for immigration enforcement proceedings unless certain criteria are met,
such as national security concerns, fraud or misrepresentation, or specific crimes. However, USCIS has said this
policy “may be modified, superseded, or rescinded at any
time without notice If it were to change, it is likely that attempts to use DACA data for broader enforcement efforts
would be challenged legally, but it is too soon to assess the
nature and chances of success of those challenges.
If DACA students come into contact with ICE or CBP, will
they be placed into removal proceedings?
As noted above, DACA is intended, in part, to allow ICE
and CBP to focus on priority cases. Unless there is a policy
change, ICE and CBP officials and agents can be expected
to exercise their prosecutorial discretion not to apprehend
individuals with DACA status, have them placed into removal proceedings, or be removed. It is important to keep
in mind, however, that DACA may change at any time.
What does a reference to a "sanctuary campus" mean?
The post-election concern about DACA students and
other undocumented individuals on our nation's cam-
puses has led to coast-to-coast protests and pleas for col-
leges and universities to offer sanctuary to protect
undocumented community members from deportation.
While the word “sanctuary" is commonly associated with
either a sacred place or a refuge, the idea of a “sanctuary
campus" has no clear meaning; it is an extension of the
“sanctuary city" concept, another term with no consistent
or agreed upon definition. Neither concept involves a
legal status that is recognized under federal law.
“Sanctuary city” policies and practices vary around the
country. One motivation and benefit is to encourage un-
documented immigrants to feel secure going to the police
for help or cooperating if they have information that can
aid law enforcement. In a “sanctuary city” police and mu-
nicipal employees may be instructed not to inquire about
an individual's immigration status, and the city's re-
sources are not used to enforce federal immigration laws.
Requests that institutions declare their campuses as
sanctuaries have included a broad range of actions. Stu-
dents at over 100 colleges and universities currently have
petitions circulating, calling for some level of sanctuary.
Is it relevant that an institution is geographically within a
Federal law enforcement authorities could act in a range
of ways regarding DACA students and other undocumented individuals who are part of higher education communities without involvement by local authorities. In
those circumstances, a campus's location within a sanctuary city may not matter.
( To be continued)
Allen E Kaye, a Phi Beta Kappa graduate of Queens College of the City of New York, Columbia Law School (JD)
and New York University Law School (LLM), is the President of the Law Offices of Allen E Kaye and Associates
and Of Counsel to Pollack, Pollack, Isaac and DeCicco.
He is a past National President of the American Immigration Lawyers Association and Co-Chair of the Immigration Committee of the Queens County Bar
Association. He has been selected by Martindale-Hubbell as a 2014 “Top Rated Lawyer” in the practice
of Labor and Employment (for Immigration) and the
2017 Edition of The Best Lawyers in America.
Questions for publication may be sent to Kaye at 225
Broadway, Suite 307, New York, NY 10007, or by email
at AllenEKaye5858@gmail.com or firstname.lastname@example.org
Immigration: A Post-Election Q&A - 2