Thursday, February 16, 2017

Suspension of DACA Would Pose Legal Challenges for DREAMers

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Last Friday, Daniel Ramirez, who had been granted deferred action and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program, was seized by Immigration and Customs Enforcement (ICE) agents, who raided his house to arrest Ramirez's father.  Ramirez's work authorization was still valid.  But this did not deter ICE agents from seizing him, as ICE contends that Ramirez admitted to being associated with a gang.  Ramirez claims he has no gang association, and that he was pressured by ICE to make such statements.

Ramirez has now initiated suit against the Untied States' Government. But his arrest and detention should serve as a warning to the thousands of young people who have applied for, and received, protection pursuant to DACA.

DACA is simply a promise made by President Obama that his Administration would not seek the removal of young people who were brought to the United States by their parents when they were children.  The President did this by granting deferred action.  Once the President grants deferred action, the recipient is entitled to apply for legal authorization to work in the United States.  But deferred action is not a legal status.  It is simply a promise from the Government not to seek removal.

DACA was not authorized by statute.  In fact, President Obama only created DACA when Congress failed to pass the DREAM Act, which would have created a path to legal residency and possibly citizenship for the young people who were brought to this country as children, but grew up knowing America as their home.  The people who would have qualified for status under the DREAM Act are affectionately known as DREAMers.

But because DACA is not a creature of statute, it is a very fragile promise.  The President is under no obligation to extend protection pursuant to DACA once the current protection expires.  Moreover, because it is a matter of executive discretion, an applicant is unable to challenge the denial of DACA protection in U.S. courts.

But once a DREAMer has been granted DACA protection, that person has an expectation to continue to receive protection from removal until the program expires.

This is the expectation that ICE violated when it took Ramirez into custody.  Ramirez, who has no other legal immigrant status, will now face proceedings in Immigration Court where the United States will seek his removal.

In many instances, Immigration Court can grant relief from removal.  There are some programs, such as asylum or cancellation of removal, which the Immigration Court by law can grant after a hearing.  However, because DACA is not a legal program, but an exercise of executive discretion, the Immigration Courts have no power to issue a ruling on whether DACA protection was improperly suspended for any individual.

This does not leave DREAMers without a remedy.  Because DACA recipients have an expectation of a governmental benefit, that benefit cannot be rescinded arbitrarily or capriciously.  That is, DACA recipients have a due process right to have their protection honored until the expiration of the program.  But to enforce this right, DACA recipients may need to go to federal district court.

That is, if ICE arrests a person who has been granted DACA protection, and seeks that person's removal, the DACA recipient will need to file a lawsuit in a U.S. District Court alleging constitutional violations, such as due process.  Such a lawsuit is expensive and can become complicated.  In Ramirez's case, he will have to address ICE's claims that Ramirez admitted to being associated with street gangs.  There will be discover and a hearing.

The availability of such a process may not be comforting news to other DACA recipients.  Many are not in a position to spend thousands of dollars on legal expenses to fight over weak legal promise which will expire anyway in a little more than a year.  Indeed, the current Administration could be counting on that level of vulnerability to pick off DACA recipients one by one, making tenuous claims of gang association, knowing that they are forcing the DACA recipients into an expensive legal battle.  In that way, the Administration can claim that it is merely going after the "bad hombres" and highlighting its argument that President Obama overstepped his authority when he instituted DACA.  This is a position that would play well with many of President Trump's supporters.

DACA recipients need to be prepared to defend their rights.  All immigrants should know that ICE cannot issue warrants to itself that allow entry into a dwelling.  Only a judge can issue such a warrant.  Before letting ICE into your house, make sure everyone knows that they need to ask to see the warrant, and to check whether it is judge-issued.  All residents of your home should also know that they are under no obligation to answer any question posed by ICE agents, except their name.  If asked anything by ICE agents, demand your right to consult a lawyer.  Sign nothing without consulting a lawyer.  Do not be intimidated by ICE.  Spread the word.

By: William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
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