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“To have this going on at the start of the school year when the air is so full of promise is really hard,” said Joe Gietl, Supervising Attorney with the National Immigrant Justice Center (NIJC).
Mr. Gietl was referring to the rescission of DACA (Deferred Action for Childhood Arrivals) that U.S. Attorney General Jeff Sessions announced on Sept. 5.
“The youth that have DACA are super smart, hard-working, savvy people,” he said. The DREAMers, known for the DREAM Act that has been stalled in Congress since 2001, have been highly motivated to file for the two-year renewal that is available for a limited number of them. The rest will lose the legal protections of DACA when their documents expire, which can be anywhere from six to 18 months away, unless Congress steps in with new legislation.
Immigrants’ rights organizations, pro bono attorneys, and community centers all over the country have been working overtime to help eligible DACA holders file for the renewal. Of the 42,400 DACA holders in Illinois, approximately 11,000 had to renew their documents by the filing deadline of Oct. 5.
On the evening of Sept. 26, Mr. Gietl presented an infosession at Evanston Township High School for families affected by the rescission.
At the session, Mr. Gietl explained the ins-and-outs of DACA renewal and answered parents’ questions. Included in the presentation was a “Know Your Rights” training session on the Constitutional rights of undocumented immigrants. The executive orders issued by President Donald Trump were also discussed.
Oct. 5 is the deadline for USCIS to receive renewal requests of DACA recipients whose deferred action and employment authorization documents (EAD) would expire between Sept. 5, 2017, and March 5, 2018. USCIS will not accept any renewal requests received after that date.
All approved renewal requests will extend deferred status and work permits for two more years. Without legislative action, all others will be reduced to undocumented status on the day that their EADs expire. In other words, hundreds of thousands of DREAMers would become undocumented and subject to deportation within the next six months to two years.
In addition, the Department of Homeland Security has revoked the special permission to travel – known as “advance parole”—formerly accorded to DACA recipients. Current DACA recipients can no longer apply. Mr. Gietl cautioned that advance parole granted prior to the Sept. 5 rescission may not be safe. Generally, if advance parole was already approved it will be accepted, but the Customs Border Patrol (CBP) always has the ability to deny entry at the border. The safest course is to not travel at all, or, at the very least, make sure to consult an attorney beforehand, he said.
Mr. Gietl emphasized that DACA recipients are legally authorized to work until their EAD expires. An employer cannot ask for an updated EAD until close to the expiration date, nor can an employer ask a DACA recipient if his or her EAD was obtained pursuant to DACA.
Even after DACA benefits expire, the Social Security number (SSN) can be used for that individual’s lifetime, and is valid for use in banking, school, and housing. For employment purposes, the SSN can only be used with a valid EAD or work permit.
With the rescission of DACA, Mr. Gietl said, it is imperative for DACA recipients—as well as any undocumented immigrants who have not explored their legal options – to consult with a qualified immigration attorney or accredited representative working at a non-profit organization officially recognized by the Department of Justice.
“The important thing to remember is that everyone needs to get a screening,” Mr Geitl said. “If a non-citizen is eligible to apply for some form of more permanent immigration status, sometimes other non-citizen family members – like a spouse, child, parent or sibling – can be included too. You never know, and things – life situations and circumstances – change all the time, so it’s really important to make sure that people get legal screenings, even if they have had one in the past.”
Unfortunately, some of the other circumstances non-citizen families need to think about include the possibility of detention by Immigration and Customs Enforcement (ICE) or deportation. Plans to protect and provide for the children who stay behind need to be in place. One of the best legal protections for this is a guardianship, which must be well thought out and crafted to protect the child only in the event of detention or deportation and only for as long as the parent wishes it to be in place.
Mr. Gietl said, “When President Trump was elected, people in the community began to encourage undocumented individuals with children to pursue guardianships in an effort to help safety plan if the individual was detained by ICE. While guardianships can be good, we thought, ‘Let’s take a step back, this isn’t always necessary.’
“What is helpful is to educate yourself about the pros and cons of filling out guardianship paperwork, and which type of guardianship is right for your family situation, if at all,” Mr. Gietl said. “Having a safety plan is key, and absolutely everyone needs to know their rights if confronted by ICE agents at home, at work, or on the street. Think about who your emergency contact will be and make sure they know what to do.
“What if your child has diabetes? You need to know that you have authorizations at the school and for your doctor to know that your emergency contact has the authorizations to fill those prescriptions.”
Evanstonian Rachel Sollinger, an immigrant rights activist, has worked with attorneys and nonprofit organizations to assist Evanston families with guardianships.
Ms. Sollinger said, “We set up short-term guardianships to protect these kids for the immediate future. And the short-term guardianship works for people who are undocumented. It’s only good for a year, but for the purpose of that emergency situation it works. Everything we do is emergency planning – it’s not long-term planning. If somebody has a home and they get deported, we can’t do anything in the short term to protect that property, but we can set up a trust to protect it.”
Simplicity is the other advantage to the short-term guardianship. It requires only the signatures of the parties and two witnesses to execute, and either parent can revoke it at any time. A long-term guardianship, on the other hand, must go before a judge.
“For a long-term guardianship, you have to go through one judge in Probate court, and she won’t grant guardianship to another set of undocumented adults,” says Ms. Sollinger. “You have to find someone who speaks Spanish, someone who will pay for the child’s needs. Will the parents be able to see the child again? Because when the parents are deported, they’re not allowed back. They give up their rights to see [the children] safe – there’s no good alternative.”
During the ETHS Infosession, most of the parents who attended asked questions, and one parent lamented that all of the hard-won accomplishments of his child would not protect her. Ms. Sollinger said, “For last year’s graduating class [at ETHS], the college applications for DREAMers were down by 40%. There has been such a cooling effect on how these kids see their future. The socio-emotional impact is huge.”
For DACA recipients, what happens next depends on whether Congress is able to work together to pass some form of the DREAM Act, once and for all.
A list of legal resources that offer assistance to immigrants, including nonprofit organizations as well as qualified immigration attorneys is available at http://icirr.org/our-work/details/1/family-support-network-and-hotline.
Anyone wishing to organize an NIJC legal information session for a community may request a session at immigrantjustice.org/infosessions.
Guardianship and Immigration FAQs are available at immigrantjustice.org.