Posted by: Floyd J Fernandez, J.D. | September 22, 2017

September 21, 2017–Part Two: DACA & Other Painful Realities

On this day I have several matters to reveal.

The truth that you have to understand about DACA is that it was never meant to be a program that would have permanence.  It was basically an act of frustration against a state of stubborn refusal.  Barack Obama, and before that, former President George W. Bush and Senators and Congressmen from both parties (mostly Democrat), wanted to pass an Act of Congress protecting those undocumented immigrants who came to the United States as small infants or young children.  These individuals have lived in the U.S.A for 15, 20, 25, 30 years or more.  They have been completely Americanized, speaking English as a first language, educated in American schools, familiar only with American culture.  If they do speak the language of their parents’ home country, it is as a second language.  They have started careers in many cases, have started businesses, have often themselves begun families of their own with American citizen spouses, with American citizen children of their own.  The overwhelming majorities of members of both political parties, and of independents and Americans in general, strongly favor granting legal status to these immigrant youth, called DREAM kids.  They are so named because of the original title to the Immigration Act applicable to them, called appropriately, the DREAM Act, introduced in the early 2000s by Senators John McCain (R-Ariz.)  and the late Edward Kennedy (D-Mass.).

And yet, the DREAM Act has, up to now, had virtually no chance of passage.  The DREAM Act was advanced in 2005, in 2007, in 2009, in 2010, and as part of a larger bill in 2013, and again now.  Each time the result was the same.  The Democrats, and about a quarter of the Republicans support it, but more than enough Republicans oppose it, driven by their fear of a segment of the party’s rank and file that will hear of any reform and respond with “Amnesty!” Doesn’t matter the amount of time these people have lived here, the youth or infancy of their age when they were brought here, their education, the degree in which they were Americanized, the businesses they may own, the American citizen families they have married and raised, the lives they have invested into.  It’s “Amnesty! They’re stealing our jobs! They steal our tax dollars by going to school! How dare they go to the emergency room! They should just die, or go back to Mexico! Stealing our tax dollars doing that! Join the military? No! They’ll take a place in the Army from a ‘real American!’ ” It doesn’t matter how many things are incorrect with those statements, they’re too busy yelling and screaming to bother letting you be heard.  Being heard means they might have to do something about it.

So, the most conservative of Republicans stop bills from being passed, people I normally would agree with, and so frustration builds until the man occupying the White House at the time decides to take advantage….a man who didn’t lift a finger to get the law passed when his party controlled Congress….and utters two executive orders that benefit DREAM kids and more…..both of which either would be struck down by the federal courts, or were about to be.  So now it is up to a bunch of conservative Republicans to pick up the pieces.

Fortunately, there are options.  There are seven different prime means that people who have had the benefit of DACA, or would have received it, had they applied:

1) Section 245(i): The amnesty of 1986, continued with a revision of 1998, in the form of The LIFE Act, gives the affected person the ability to obtain legal residence, if they have a former petition for them before April 30, 2001, and have a petitioner now who is either a U.S. Citizen spouse or a child over 21, or a parent for a child under 21;

2) I-601A: The program of waiver of unlawful presence, as long as there is a willing and eligible U.S. Citizen spouse or child over 21, willing to petition for them with an I-130 petition for alien relative, will then be eligible to apply for waiver of unlawful presence, if the immediate relatives, or another eligible immediate relative will suffer extreme hardship if they are forced to move to their country of birth;

3) U Visa:  This program protects those who are victims of crime in the U.S.A., or who have family members who are victims of crime, and who are certified as victims of crime by a judge or a prosecutor or responsible member of a law enforcement office.  They are then given a temporary, that is a non-immigrant visa, that lasts for 4 years, and grants the right for an affected individual to self-petition for permanent legal resident, in the fourth year of that temporary visa grant;

4) T Visa:  This program is a companion to the U Visa, that gives the same benefits, under the same conditions, for those who are verified that they are victims of sex or human slave trafficking.  The option to self-petition, as granted by the Violence Against Women Act (VAWA), is likewise extended to the victims of human trafficking;

5) Special Immigrant Juvenile Status (SIJS):  The program is available for those unaccompanied children or juveniles, who are forced by their presence to be placed as wards of the state in which they reside through a formal court order, placing them either in foster care, or through court-ordered guardianship.  That placement will allow them to self-petition for permanent legal residence, as long as the application is made by the individual alien before they turn 18;

6) Violence Against Women Act (VAWA):  Those individuals, or their children, who are categorically and documentedly shown as victims of U.S. Citizen or legal resident spouses or parents, are allowed to self-petition and then adjust status for permanent legal residence.  Those individuals are even allowed as an exception to the rule against departing the U.S.A., and then returning, without suffering the permanent ban from immigrating, as long as the violation listed in Section 212(a)(9)(C) of the Immigration & Nationality Act (INA), is shown to have been caused by the violent abuse;

7) Asylum/Refugee/Withholding of Removal:  While there has been a move by the Trump administration to restrict admissions of those seeking asylum or refugee status, that is still available to those, with ultimate access to opportunity for permanent residence, who can demonstrate the reasonable fear of persecution or harm, in their home country, either by their governments or by those criminal cartels like those of Mexico, and when the government is shown as unable or unwilling to stop them.

To ensure that those application opportunities are successful, there must be the kind of legal help that can only be provided by an experienced attorney and his/her staff.  The good news, is that while the DREAM battle is still raging, there are still good options to take that can protect many from that dreaded “knock on the door.”

Consigiliari Pacifica–


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