1. I have DACA – what now? Maureen Abell and Lisa Diefenderfer
Immigrant Justice Program
Charlotte Center for Legal Advocacy

2. DACA’s legal standing Created in 2012 by Executive Action
Builds on Sec. 274a.12(c)(14) which establishes the right to apply for authorization to work for any foreign national “who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority”    
The Supreme Court recognized the legality of deferred action, even without express statutory authorization. Reno v. American-Arab Anti-Dsicrimination Comm., 525 U.S. 471 (1999) BUT
Was never legal status
Current administration has indicated it is no longer following any prioritization structure for removal cases

3. DACA’s Legal Standing con’t
15 states and DC have filed lawsuits against the Trump administration for the cancellation of DACA
Other possible / likely lawsuits
If information from DACA applications is used to target DACA recipients for removal
Termination of the right to renew for people whose DACA had lapsed less than 1 year before Sept. 5th

4. Factors that will affect your legal options
How you entered the country
Also, how many times?
How old you were when you got DACA
Have you ever been ordered removed?
Any family ties to people with legal status
Especially US citizens or Permanent Residents
Any other inadmissibility issues (ex. criminal record, false claim to citizenship)
If you qualify for humanitarian relief

5. Solution #1 – Adjustment of Status (get your green card without leaving USA)
ONLY for people who entered after being inspected (OR have a pre-May 2001 family petition)
Visa overstay OR DACA Advanced Parole
Needs a USC spouse or adult (21) child
Also:
Clean(ish) criminal record
No false claims to US Citizenship
$$$
Filing fees are $1,225 per immigrant
Extra $1,000 fine for the old family petition EWI
Requires affidavit of financial support

6. Method of Entry - overstay
Was inspected at entry
at an airport or border crossing
with a passport or border crossing card (or Canadian)
Is still here after last day of permission to be here
INA 245(c)(2) - an alien (other than an immediate relative of a USC [and some other exceptions that are mostly humanitarian]) who hereafter continues in or accepts unauthorized employment […] or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States [can’t apply for any type of visa];
If you let your status lapse, you can fix that by marrying a citizen

7. Method of Entry – without inspection (EWI)
Stowaway or not at an authorized entry point (ex. walking, by boat)
INA 212(a)(6)(A)(i) - An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
Can’t change how you came in, can change if you are present

8. Solution #2 – leave and come back
For:
People who entered EWI and want to apply through family (USC spouse or adult kids only)
Work visas
Need:
Less than 180 days of unlawful presence (ULP)
Permission to re-enter legally (a visa)

9. What is ULP? Not all time out of status counts as ULP
Time before you turned 18 doesn’t count
Time in DACA doesn’t count
Time with DACA pending doesn’t count IF:
You filed before 18, even if approved after

10. Calculating UPL Count the days:
From your 18th birthday til you first received DACA (A) [ignore A if you applied for DACA while still a minor]
From when each DACA grant expired til the next was approved (B) (C) [ignore B (and C) if still a minor]
Starting when DACA expires (D)
If A+B+C+D = 181 to 364, can’t come back for 3 years if you leave
If A+B+C+D = 365 or more, can’t come back for 10 years

11. Solution #3 – humanitarian relief
Examples:
Asylum
Also withholding of removal
U/T visa
VAWA-based green card application
Cancellation of removal
SIJS

12. Cancellation of Removal
Only available in front of an immigration judge – meaning you have to be in removal proceedings – IF
been here for at least 10 years before being served with the notice to appear in court
Good moral character (not limited to criminal convictions)
Not criminally inadmissible
Removal will cause “exceptional and extremely unusual hardship to” USC or LPR spouse, parent or child
If you win – GREEN CARD!!

13. U visa For co-operating victims of certain crimes
local gov’t has to be willing to co-sign
Ex. CMPD, DA’s office, DSS
4 year non-immigrant visa w/ EAD
After three years, can apply for residency
Can include family as derivatives
Can get waiver for just about anything
Can’t pre-waive future bars to re-entry

14. T visa
For victims of human trafficking in the USA “on account of trafficking”
Also 4 year visa with option to apply for residency after 3 years
Also can add family members to petition
Waiver of inadmissibility issues less generous than U, but T backlog is shorter

15. VAWA Family-based Abuse-based
Requires a USC / LPR spouse, parent (or step-parent) or adult child
Abuse-based
Physical abuse sufficient, but not required
Automatic forgiveness for ONE entry without inspection
Multiple entries can be forgiven if related to the abuse

16. Probably not a solution
The following are real applications that you can file with USCIS, but most of you probably shouldn’t.

17. (probably) Not a solution – family petition (not IR)
Immediate relatives (in the sense that they can apply immediately) are:
Spouses, parents and minor children of USCs
U.S. citizens may also apply for siblings and adult children
Lawful Permanent Residents may apply for spouses and unmarried children (any age)
BUT - limited #s of visas available in each category means long waits
If you’re out of status, have to leave to apply - ULP

18. Visa Bulletin Family- Sponsored GENERAL CHINA INDIA MEXICO PHILIPPINES
F1 – unmarried sons and daughters of USCs (23,400 annually)
F2 – 114,200 annually
F2A- spouses and children of LPRs (77%, or 87, 934)
F2B – unmarried sons and daughters of LPRs (23%, or 26,266)
F3- married sons and daughters of USCs (23,400 annually)
F4 – siblings of USCs (65,000 annually)
Total – 226,000 immigrants
Family- Sponsored 
GENERAL
CHINA
INDIA
MEXICO
PHILIPPINES  F1
22DEC10
01FEB96
15OCT06
F2A
22SEP15
22SEP15 
01SEP15
F2B
01NOV10
01NOV10 
01JUL96
08DEC06 F3
08JUL05
08APR95 
22JAN95 F4
08MAY04
22SEP03
15SEP97
08APR94

19. (probably) Not a solution – student visa
Need continuous legal status to apply from inside USA, so will need trip to consulate
Will have to convince three gov’t agencies to approve (USCIS, State and CBP)
Student visa don’t allow immigrant intent
At the time you apply, your intent has to be to graduate and return home (Can change your mind during studies)
Most DACA recipients will be denied on this ground

20. (probably) Not a solution - Asylum
someone who has left his or her home country and cannot return because he or she has a well-founded fear of persecution by the government or a group the government cannot or will not control, based on religion, race, nationality, political opinion or membership in a particular social group.
Needs to be particular to you, general violence or poverty not enough
Humanitarian Asylum – has suffered past persecution so severe that shouldn’t be sent back regardless of likelihood of future harm OR likelihood of severe future harm so high that doesn’t matter that it’s not persecution

21. Asylum, con’t Also: Home country government can’t or won’t protect
can’t reasonably relocate inside one’s own country
no other country where one has the right to live
Applied within 1 year of coming to USA
exception for people who experience “changed circumstances”
Unclear if the end of DACA would qualify
Arguments:
Recent persecution of family in home country
Home country is now war zone (ex. Syria)

22. (probably) Not a solution - TPS
Requires physical presence since before the last time country was designated for TPS
If you were in some other status then, can apply at time of renewal
Most countries currently designated for TPS have been since BEFORE DACA (meaning those eligible for DACA should have already had TPS)
Exceptions - Nepal, Sudan, South Sudan, Syria and Yemen (all designated after 2012)

23. (probably) Not a solution - SIJS
Only available to:
Minors (usually 18 or under, always under 21)
With a state court custody or guardianship order that says
Was abused, abandoned or neglected by one or both parents
Or “similar basis under state law”
Should not be returned to their country of origin
Type of application for residency (green card)

24. Safety Planning for DACA recipients
Know your rights
Know who co-operates with ICE
Know if you have an old order of removal
If you qualify for other relief, APPLY
If you have an application for relief pending, carry your receipt with you

25. PRIOR/CURRENT ENFORCEMENT PRIORITIES
Under Obama
Focused on:
People with criminal histories
Especially drug charges or violent crimes
Recent arrival to the US (2014 or later)
Leniency for
People with pending applications for status
Even if they had an old removal order
Under Trump
Everybody
Little/no leniency

26. Internal Enforcement
“Expedited removal” no right to a hearing with a judge to present a defense against deportation
For unlawful entry only (no inspection or fraud)
Unless person indicates might be eligible for asylum
Previously
People apprehended within 100 miles of the border who could not prove physical presence of more than 14 days
Currently
DHS says can/will implement anywhere in country for anyone who cannot prove physical presence of at least 2 years

27. Internal Enforcement, con’t
Arresting/deporting people with pending applications
Arresting people in locations previously considered “off-limits”
Schools
Courthouses
Hospitals
Homeless shelters (in winter)
Increase participation by local law enforcement
Pressure on “sanctuary cities”

28. Detainers and Charlotte
CMPD does not have a co-operative agreement with ICE
Mecklenburg sheriff’s office DOES
Tickets (at least in Charlotte) probably won’t lead to ICE notification
Arrest (anywhere) probably will
Failure to attend criminal or traffic court CAN lead to a warrant for your arrest, even if you weren’t arrested initially

29. What is the Charlotte Center for Legal Advocacy?
The Charlotte Center for Legal Advocacy is a 501(c)(3) legal services organization that works to build a just community where all people are treated fairly and have access to legal representation to meet their basic human needs of safety, economic security and stability.

30. Who are our clients?
Low-income immigrants/Spanish-speakers living in the greater Charlotte area
The majority of our clients are from Honduras, El Salvador, Mexico, and Guatemala, but we also have clients from the Caribbean, South America, Africa, Asia, Europe and the USA
Types of cases
Immigrants who are fleeing persecution and violence in their home countries;
Immigrant children who have been victims of abuse, neglect or abandonment by parent(s);
Victims of domestic violence or other violent crime and their families
USCs or LPRs who would suffer hardship if their spouse/child were deported

31. QUESTIONS?