Wed | Nov 14, 2018

Immigration Corner | Jamaica, DACA and Trump

Published:Tuesday | October 10, 2017 | 12:14 AM


In 2012, the Obama administration announced relief for children who were brought to the United States (US) and who currently had no legal status. The reasoning was that these young people had no participation in coming to America and were caught in a legal quagmire because the US Congress failed repeatedly to pass legislation to grant them legal status and to protect them from deportation.

Deferred Action For Childhood Arrivals (DACA) provided relief from deportation for those who were:

under the age of 31 as of June 15, 2012; came to the US before reaching their 16th birthday; had continuously resided in the States since June 15, 2007; did not depart the US on or after August 15, 2012 without advance parole; were present in the US on June 15, 2012; entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012; had graduated or obtained a certificate of completion from a high school, had a GED, or in school at the time he or she requested DACA; were an honorably discharged veteran of the Coast Guard or Armed Forces of the US; had not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety.

DACA gave these young people the reassurance that they would not be deported, and an opportunity to lawfully participate in American life. They were provided work authorisation which allowed them to obtain a social security number and legally work and pay income taxes, or enrol in higher education at colleges and universities in the States.

As of September 4, 2017, US Citizenship & Immigration Services (USCIS) reported that 689,800 persons were active DACA recipients. At its peak, there were 800,000 DACA recipients, but for various reasons including those who have since become US residents, the number of active recipients declined. The estimate was that 1.2 million individuals were DACA eligible, but many chose not to come forward and apply for the benefit. The vast majority of those who had applied as of September 4, 2017 – 79 percent or 548,000 are Mexican born.

Jamaican cases

Jamaica has 2,640 recipients. For the Jamaicans who qualified for DACA, some were brought to the US on their own legitimate visas and overstayed, some were brought on fraudulent documents and others were smuggled into the States by adults. The vast majority of these young people were unaware of their legal status until they graduated from high school and realised that they had no legal status to attend college or to begin working. In the States, undocumented children are permitted to attend public elementary and high schools pursuant to a Supreme Court decision. For many of these young people, they thought they were American citizens because they don’t remember their birthplace, America is the only country they know.

For at least two decades the US Congress has been unable to pass legislation known as the Development Relief and Education of Alien Minors Act (DREAM Act) and its various permutations. This lack of action by Congress prompted President Obama to implement DACA by executive order. Presidents have the power to issue executive orders that instruct the US government to act in various areas. The issue with executive orders is that a subsequent administration can rescind them.

On September 5, 2017 the Trump administration rescinded DACA. The rescission gave those whose DACA applications that would expire by March, 2018 until October 5, 2017 to file for renewal.  All other DACA authorisation will expire on a rolling basis – unless Congress finally passes legislation to make the DREAM Act or some version of legalisation for the undocumented young people law.

In the meantime, DACA recipients need to explore alternatives to legalisation. Those who entered with their own visas, may be able to change their status to permanent residents if they have an immediate US citizen relative. Others who entered without inspection should explore whether they may be able to benefit from other sections of the law such as provisional waivers.

It is important to seek competent legal counsel in the States if you are a DACA recipient as there are several unscrupulous individuals emerging who are taking advantage of the anxiety and frustration of the uncertainty of the future of the programme. 

At press time, the Trump White House has listed a serious of 'must haves' that the administration wants in exchange for supporting legislation to permanently legalise the DACA recipients. The uncertainty continues.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida.