By Attorney Farhad Sethna © 2017
The Attorney General of the State of Texas, Ken Paxton, and Attorney Generals of nine other states (Kansas, Nebraska, Alabama, Arkansas, Idaho, West Virginia, South Carolina and Tennessee – all Republican controlled) have threatened to sue the Trump administration if Trump does not rescind President Obama’s DACA executive order, originally passed in 2012.
As many readers of this blog know, there are two DACA’s: DACA 1 (2012) and DACA 2 (2014). DACA 2, after much litigation, was struck down by the Fifth Circuit Appeals Court. DACA 1, however has survived, including some court challenges brought by agents of USICE and others including Kris Kobach, one of Trump’s virulently anti-immigrant advisors.
When Trump campaigned for office, he shamelessly proclaimed, among other promises, that he would revoke President Obama’s “illegal executive orders” on his first day in office. Well, Trump’s first day has come and gone, and now he has said that he wants to deal with DACA and Dreamers with “great heart”.
That does not sit well with hard-line Republicans. They believe that DACA recipients – children who brought to this country at an early age, have grown up in the USA, studied in the USA, and have worked legally under the DACA status in the US, paying taxes and following the law – should receive no benefits. That is mean spirited, right wing nationalism at its best, spearheaded by your Republican legislator.
The Attorney Generals of the states against DACA have promised to sue Trump if he does not rescind DACA by September 5. That is also the day that Congress returns from its August recess. This is an example of Republicans essentially suing Republicans. It is also a show of force by the Republican right wing, to demonstrate to Trump how much power it has to destabilize his regime. Having been elected as a darling of the right and the far right, Trump must now deliver. If past history is any indication, Trump will quickly abandon the DACA recipients and bow to the right wing of the Republican party, probably in exchange for votes on a repeal of Obamacare.
Should an individual now apply for DACA?
Given the comments of Homeland Secretary John Kelly a few weeks ago, when he proclaimed that all aliens illegally in the USA would be subject to arrest and removal, it would seem foolish at this point to apply for DACA and to give oneself up. There is no court that is going to uphold a DACA applicant’s privacy rights under this regime. An individual applying for DACA is going to give up valuable information and contact information not only for himself or herself, but also for family or friends. This could cause many more undocumented aliens (and documented family members too) undue suffering and anguish if they too are targeted by ICE based on a DACA application.
While DACA is not dead yet and applications continue to be processed by USCIS until DACA is finally terminated by Trump, it would be my personal and professional advice not to file a new DACA application unless you understand the risks and are willing to accept them. Renewal applications are fine; that individual has already provided his or her information to USCIS.
Stay tuned for further developments on this most important and distressing situation. In the meantime, contact your Republican Congressmen and Senators and ask them to oppose the evil move by these ten states to repeal the DACA executive order.
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible