Last week, the Department of Homeland Security (DHS) finally published proposed regulations to make the DACA program an actual part of the immigration legal system. (This should have been done during the Obama presidency).
The proposal formalizes the old guidelines and makes some changes in the fees required. The public is given 60 days till the end of November 2021, for comments. Then the DHS would publish the final Regulation.
Even with a published Regulation, it does not mean that there would not be another round of lawsuits against DACA. But the program, at least, would have a solid, legal basis.
U.S. Immigration and Customs Enforcement (USICE) is the agency authorized to arrest non-citizens without permits to stay or work, to start removal cases by issuing Notices to Appear in Immigration Court (NTA), to deport non-citizens who have Orders of Removal. The lawyers who represent the government in Immigration court work for ICE. In short, ICE is the ENFORCEMENT arm of the Immigration System.
It is the other agency, U.S. Citizenship and Immigration Services (USCIS) that is responsible to adjudicate petitions and applications, to grant extensions of stay and adjustment of status (Green Cards).
On September 20, 2021, the Secretary of Homeland Security, Mr. Alejandro Mayorkas, issued a Directive to the head of ICE with guidelines for arrests. The Directive states that the mere fact that somebody is an undocumented non-citizen, should not be reason for his or her arrest. ICE officers should consider the following priorities:
1. Is the person a threat to NATIONAL SECURITY, such as a SPY or TERRORIST?
2. Is the person a threat to PUBLIC SAFETY, such as being a SERIOUS CRIMINAL? When considering past criminal convictions, ICE officers should use their discretion to decide whether the circumstances of the criminal case as well as the circumstances of the person and his or her family justify an arrest and a deportation case.
3. Is the person a threat to BORDER SECURITY, such as being arrested while attempting to enter illegally, or if entered the U.S. after November 1, 2020. In all events, ICE officers should use their discretion to decide whether an arrest or removal case is necessary.
My advice to clients? If you are confronted by ICE officers, do not try to evade them and never lie to officers. Have some proof that you have been in the U.S. since before 11/1/2020. And, of course, don’t commit any crimes.