By Michael Noriega and Scott Malyk
Editor’s note: The authors are the incoming chair and chair of the NJSBA’s Immigration Law Section, respectively.
On Tuesday, September 5, Attorney General, Jeff Sessions, announced that Deferred Action for Childhood Arrivals (DACA) would be phased out in six months if Congress fails to act on its own to pass immigration legislation. As initially designed, the DACA program provided administrative relief from removal/deportation to eligible immigrant youth who entered the United States when they were children (also known as Dreamers). As part of the DACA petitioning process, an applicant was required to demonstrate, inter alia, that he/she had entered the U.S. as a child, that he/she met the education requirement (completed school or attending school) and had no arrests or criminal record of any significance. Approved DACA applicants were granted a temporary employment authorization document, typically valid for a period of two years, which allowed them to work legally in the United States, such document is also a stepping stone to obtaining a valid driver’s license, a social security number, and, ultimately, seeking college and graduate-level education.
The DACA program was initiated under the Obama administration by way of executive order. A subsequent attempt to create a similar deferred prosecution program for the parents of immigrant youth (known informally as DAPA) failed after federal litigation ensued challenging the constitutionality of such executive powers. The Trump administration, under threat of a similar legal attack against DACA, has chosen to rescind the executive order and has issued a demand to Congress to take action to codify or address the treatment of the approximately 800,000 Dreamers who will be lose the protections afforded under DACA.
For the 22,000 New Jersey residents who face losing their grant of deferred action status, new questions will surface concerning their protections and next steps. As driver’s licenses, employment authorization documents, and other identity documents begin to expire, if Congress fails to act, New Jersey DACA residents will begin to seek guidance and legal assistance to determine how to maneuver through daily life.
In reality, DACA recipients are, by definition, individuals between the ages of 15-31, who have spent (at least) the last five years coming out of the shadows, becoming recognized as members of our New Jersey communities who no longer needed to hide their identities. They are children in our kids’ high schools, they are teachers, nurses, in some cases -- our employees. In reliance on the safeguards afforded by DACA, many have made their own investments to start small businesses. If Congress fails to act, each and every DACA recipient will begin to lose the documents that established their identities, their right to work and served as proof of their right to be in certain locations in New Jersey, like schools, office buildings, the motor vehicle commission, or their own work sites.
A hallmark of the DACA program, at its outset, was that personal information shared in the DACA petitioning process, necessary to obtain the benefits, would not be shared with ICE (Immigration and Customs Enforcement), the law enforcement arm of the Department of Homeland Security. It is not yet clear whether this guarantee will remainor if it already has shifted. A major concern exists that DACA recipients may seek to avoid interaction with the legal system for fear of removal. Victims of criminal matters, victims of domestic violence, litigants in matters involving civil disputes, business disputes, landlord tenant, family law, or criminal law, may be concerned that appearance in New Jersey courts may expose them to immigration authorities.
Attorneys must be more vigilant than ever to bear in mind these concerns when advising clients in matters that may have a tangential impact on their immigration status in the country, especially given that there is an Oct. 5 DACA renewal filing for certain, qualifying individuals. Immigration status in the United States should now become an integral part of every attorney’s initial client meetings in order to better protect our New Jersey resident clients.
Scott R. Malyk is with Meyner and Landis LLP in Newark and can be reached at email@example.com.
Michael Noriega is with Bramnick, Rodriguez, Grabas, Arnold & Mangan, L.L.C.and can be reached at firstname.lastname@example.org