Ten DACA issues, myths, and facts

Monday, September 4th, 2017
By: Jonathan MontagJ.D.


1. DACA kids have been accused of everything from being gang bangers to being valedictorians. They aren’t all everything. Just kids. (The oldest DACA recipients are 36 years old).

2. DACA kids should have become citizens in all this time. Unfortunately, though it used to be, just being in the United States for a long time is not an avenue to become legal. If one entered illegally, becoming legal here through marriage to a United States citizen is not a way to become legal here either. Having citizen children is not either.

3. 100 percent of DACA beneficiaries are crime free. Non-significant misdemeanants could get DACA, though it required showing that the crime was not significant. The program is/was based on an individualized determination of legibility based on the theory of prosecutorial discretion (the concept we see all the time, where a policeman may tell you to knock it off and go home rather than arrest you), so each case was individually examined to determine if the crime was or not significant – no blanket crime exemptions.

4. DACA kids had to pay $500 for the benefit. There is a $495 fee currently in place for DACA. It is not really to buy into the program. Rather, it is the processing fee USCIS charges for a work permit ($410) and a fingerprint check ($85). The fee is high because USCIS fees are high in general.

5. While DACA kids have certainly been helped by lawyers, I have seen DACA kids frightfully overcharged by lawyers purporting to be human rights champions for assisting them in filling out the form and mailing documents proving eligibility. We live in a capitalist system and many immigration lawyers are strong adherents to and beneficiaries of the system. Many lawyers invested heavily in office space and staff in expectation of a DACA cash cow.

6. President Obama instituted DACA after his efforts at comprehensive immigration reform failed because of Republican opposition and DREAMER legislation failed in Congress. His administration did not push for legislation to benefit only the kids, DREAMER legislation, for tactical reasons, but Republicans opposed it anyway.  This new-found love of the DREAMERS by Republicans is indeed extremely new-found (and half-hearted).

7. The legal challenges to DACA that Red State attorneys general are threatening will be based on President Obama’s failure to promulgate DACA regulations through the Notice and Comment process. It was failure to go through this process that felled his subsequent DAPA program (P for the parents of the DACA C children). The argument was that one did not need regulations to exercise prosecutorial discretion, but in retrospect, promulgating regulations may have better-entrenched the program.

8. DACA kids are not going to be immediately deported. Though some have final orders of removal and can be, the vast majority will have to be placed in removal proceedings and wend their way through the immigration courts, which are woefully backlogged.  It could take months and years before removals occur.

9. While DACA children are not lawfully present in the United States, as they had to arrive before the age of 16, they are not legally culpable for their being here illegally, as generally, children are not responsible for the actions of their parents. While God punishes children for the iniquities of their parents for three or four generations, American law generally does not.

10. DACA kids provided their fingerprints, addresses and contact information to the government. The government never promised to keep this information segregated from law enforcers, but there is precedent for not using voluntarily-provided information in seeking a benefit for law enforcement purposes. Let’s hope and lobby and litigate that the government does not use this information to round people up as the Ninth Circuit’s Judge Harry Pregerson recently exhorted, perhaps with his eye on this ball.

Posted September 4, 2017.


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