As of this writing, both houses of Congress have failed to pass any comprehensive fix for the lingering question that is the Deferred Action for Childhood Arrivals (DACA) program. Instituted under President Obama, the program has been under attack since the installation of the current administration, being ‘cancelled’ in September 2017, though currently there is an injunction in place against its disbandment. Nonetheless, the question must be asked—if no fix is passed to grant legal status to the DREAMers, what can they do? Is there any reprieve possible?
Expedited Removal is an Issue
One major concern for many DREAMers is what is referred to as expedited removal. The Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), passed in 1996, instituted the concept, which permits immigration authorities to arrest and deport those in the country for less than two years without giving them a hearing before an immigration judge (which is required for all others charged with immigration violations). Formerly, this was only enforced within the so-called 100-mile zone, meaning that the interior of the country was a safe zone of sorts. This administration has extended the reach of this procedure to the entire country.
This is problematic for DREAMers because aside from DACA status itself, there is very little to show that they have been continuously present in the U.S. for more than two years. The key word is continuous—if they, for example, traveled to see family or for pleasure, that would break the chain of continuous presence for immigration purposes. Expedited removal also used to exclude first-time violators from Mexico and Canada, but this is no longer the case.
Cancellation of Removal
If a DREAMer is able to avoid expedited removal, his or her only real hope of lawful status in the U.S. at this juncture is to seek cancellation of removal (COR). COR is essentially prosecutorial discretion, which is less than optimal simply because it relies on the kindness of career politicians, and if the requirements are met, a green card will be issued. Despite its long odds, if a person meets the criteria, COR is very worth exploring, even in this administration.
The criteria to meet are: 1) one must already be in removal proceedings—in other words, it cannot be asked for affirmatively; it must be requested when one is already due to be deported (as opposed to just appearing at an immigration office and making a request); 2) one must be able to show continuous physical presence in the U.S. for the last 10 years; 3) one must have good moral character and never have been convicted of an aggravated felony; and 4) one must be able to show that “exceptional and extremely unusual hardship” would result for a U.S. citizen or lawful permanent resident qualifying relatives—generally, spouses, children, and parents. This standard is extremely difficult to meet, but it is possible.
Contact an Experienced Attorney
With hope, Congress will yet pass a legislative resolution that gives status to DACA recipients and quells the fears of DREAMers. However, there is no harm in being prepared if that does not occur. The skilled Chicago deportation defense attorneys at Mevorah & Giglio Law Offices can sit down with you and try to answer your questions about potential options for the future. Contact our office today to schedule a free consultation.
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