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The Whipsaw: Recent Changes To DACA And TPS

Sawdust

The whipsaw method of modifying federal immigration policy was established in early 2017 and continues apace in the new year. It goes something like this: the Trump administration takes a drastic (and perhaps legally insupportable) action with the evident goal of reducing the overall numbers of both legal and undocumented immigrants in the United States. Immigration advocates in local government and/or the nonprofit realm then challenge the changes in court, which not infrequently results in a federal court putting the brakes on all or part of those changes. It’s created a tough and uncertain situation for all stakeholders but especially for the immigrants whose futures are now obscured by the accumulating sawdust of aggressive, de facto immigration reform.

American Gateways clients are among the immigrants struggling through this period of heightened confusion and include beneficiaries of certain U.S. Citizenship and Immigration Services (USCIS) programs. In particular, people eligible for the Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) programs have seen important changes over the past few months.

DACA

The administration discontinued DACA in September and gave status-holders one month to apply for a final renewal, valid for two years. It was a demoralizing setback for the over 700,000 undocumented people known as Dreamers. At American Gateways, we’ve filed over 1,200 applications and renewals for DACA protection since the program’s inception. The cohort’s name comes from a law called the DREAM Act that knocked around Congress in the first decade of the aughts. It sought to legalize the presence of people brought to the country as children but was hampered by the stubborn toxicity among some hardliners of anything that could be considered an amnesty. The Obama administration responded with DACA in 2012 and set certain qualifications for applicants. They must have arrived before their sixteenth birthday. They must either attend school or possess a high school diploma or GED. They will “have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety,” in the words of USCIS.

Despite the erroneous claims of some pundits and politicians (including Texas Attorney General Ken Paxton), DACA did not provide a path to citizenship or even legal permanent residency. It simply guaranteed that Dreamers would not be targeted for deportation and, crucially, could legally seek work. Hopes have risen and fallen several times in the past year that a permanent legislative solution to the Dreamer’s situation would be found. In fact, they’ve risen and fallen several times in the past week. But a recent development at a San Francisco federal court resulted in a welcome, if still temporary, change in USCIS policy.

Judge William Alsup issued an injunction on January 9th against the repeal of DACA,  mandating that the program resume for those who had already been granted deferred action status at the time of the September repeal. People needing to renew can once again do so and those whose DACA status lapsed or was revoked before the discontinuation can reapply. However, people who were never granted DACA protection cannot seek it now. The Department of Justice appealed the injunction yesterday at the 9th Circuit Court of Appeals and also announced its intention to seek a Supreme Court review. The whipsaw can change direction at any time, but only a legislative fix will bring some measure of stability to the lives and future plans of the Dreamers. Those eligible to renew or reapply are encouraged to do as soon as possible. American Gateways is collaborating with other organizations to offer DACA clinics on January 19th and 21st. See the flyer here or find more information on our Events calendar.

TPS

Meanwhile, recipients of TPS from Nicaragua and El Salvador occupy a space below the dusty first downstroke of the whipsaw. The Department of Homeland Security declared the end of TPS designations for those countries in December and January, respectively, and provided dates for the final re-enrollment period for Nicaragua. They have not yet announced the final re-enrollment period for El Salvador. TPS recipients from Honduras are in a sort of purgatory since the deadline to announce a decision regarding designation renewal or cancellation was missed by the government, thus triggering a legally mandated six-month extension. It’s worth noting that Haitians (whose TPS designation was also cancelled but among whom American Gateways does not have any clients) received an extension in May of 2017 only to have, in November, their TPS designation scheduled for cancellation in 2019.

TPS is issued for different reasons and for different countries, with the common factor being sufficiently abundant danger at a certain time for citizens of those countries such that the U.S. extends a humanitarian invitation to temporarily reside and work here. The particular application requirements also vary by country but generally require applicants to be present in the U.S. since a certain date and to have attained a certain level of education. Each increment of TPS also varies but is usually given for 12- or 18-month periods. Much of the pushback to the recent revocations of TPS is focused on the at-best modest extents to which conditions in those countries have improved. El Salvador and Honduras, for example, continue to occupy some of the top slots in homicide rates by country.

Nicaraguans have until February 13th to apply for a TPS extension that will then expire on January 5th, 2019. We know that the final TPS extension for Salvadorans will expire on September 9th, 2019 and await a USCIS announcement about re-enrollment. Hondurans also have until February 13th to re-register for the automatic six-month extension. The longer term future of Honduran TPS remains unknown.

Ping Pong and Public Opinion

The chaotic and piecemeal approach to immigration reform now underway is symptomatic of several underlying conditions but also reflects a broader ambiguity in matters of federal policy. While immigration reform has often fallen within the purview of the legislative branch, the lack of recent action on Capitol Hill has forced it into the turbulent confluence of executive branch action, citizen advocacy and judicial branch power balancing. It’s unclear to what extent hardliners – including Jeff Sessions and Stephen Miller – in the Trump administration overshoot their goals in anticipation of the whipsaw effect. Regardless, their presence at the forefront of policymaking is a lamentable renaissance of a type of nationalism we had hoped was on the wan. Additionally, the president’s ping ponging rhetoric obscures the intent behind, and prospect for the success of, a White House-brokered legislative compromise.

On the ground, answers to riddles like these hardly matter. The past year has been difficult enough for many immigrants as families are disassembled and once-bright futures are thrown into sudden uncertainty. Our approach at American Gateways has always prioritized respect for each individual immigrant and a dedicated, sustained effort as our clients navigate a daunting system. In our daily work we try to mitigate the difficulties most immigrants must face while also advocating more generally for the idea that immigration enriches the entire nation. In at least one area, it seems most Americans agree. According to a recent CBS News poll, 70 percent support allowing Dreamers to stay in the country.

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