Shashank Gupta (not his real name) is an IT professional in Kansas.
His father arrived in the US in 2006 on an H-1B work permit along with the family, and Gupta duly joined high school; later his parents applied for permanent residence (or the green card), which was unfortunately denied when his father lost his job and fell out of status. Gupta, who by then had joined university, did not return to India with his parents in 2011 and hence became an undocumented immigrant.
In 2012, then president Barack Obama’s Deferred Action for Childhood Arrivals (DACA) programme came as a big relief for him and he was one of the early beneficiaries. After receiving authorisation under DACA, Gupta got a job and he was also able to visit his parents back home. It’s a different story, now after President Donald Trump announced earlier this month that he would be discontinuing the DACA programme.
Since no details are available so far about how the programme will be wound up and which category of beneficiaries will face deportation, Gupta can’t even take recourse to consulting immigration lawyers. His job and life in the US are now hanging fire, since his permanent residence status, which he has applied for, will take years to process. Trump had announced on September 4 that he would be cancelling DACA, which protects from deportation around 8,00,000 people who had moved to the US illegally as children and provides them with temporary work or study permits. Trump has given Congress six months to enact a replacement plan for DACA recipients.
While talks were on between Democrats in Congress and Trump earlier this week on legislation to protect young undocumented migrants, who were Trump has given Congress six months to enact a replacement plan for DACA recipients. While talks were on between Democrats in Congress and Trump earlier this week on legislation to protect young undocumented migrants, who were DACA beneficiaries and are commonly referred to as Dreamers, an agreement had not been reached. Immigration lawyers and experts in the US are trying to figure out the extent of damage that the termination of DACA will have on young people and Indian American families who benefitted from it.
“If a young person has received DACA authorisation, it has raised the hopes of this young person and the parents. The child can now find a proper job and embark upon a career. Losing DACA authorisation is like shattering the American dream. The child can no longer work and pursue his or her dream in America,” says Cyrus Mehta, an immigration attorney in New York.
Many Indian DACA recipients have embarked on successful careers in the fields of business, medicine and architecture, adds Mehta. While, in many cases, the parents may be undocumented, that the child at least had DACA was a relief for the family. In other cases, the parent may be legal, but the young adult may not be because the child had aged out and could not get the green card with the parent. In this situation, losing DACA is even more devastating.
Challenges Ahead
South Asian Americans Leading Together (SAALT), a civil rights and racial justice organisation, are now supporting calls by Democrats in Congress for the immediate passage of the Development, Relief, and Education for Alien Minors (DREAM)Act, which could replace DACA. Currently, there are several bills before the US Congress that would offer some kind of protection for people with DACA, and possibly for other unauthorised immigrant young adults who entered the country as children.
It is unclear which of these bills has the best chance of passage. So far there is no guarantee that Congress will be able to pass a DREAM Bill, given the various factions, many of which are opposed to granting benefits to undocumented people. Meanwhile, some US states have sued the Trump administration on the grounds that suddenly rescinding DACA was in violation of the due process clause and also violative of proper administrative procedures.
“This administration’s heartless, endless efforts to target and marginalise immigrant communities make the immediate passage of a clean DREAM Act all the more urgent,” says Suman Raghunathan, executive director of SAALT.
According to SAALT, over 27,000 Asian-Americans, including 5,000 Indians have received DACA. An additional estimated 17,000 individuals from India are eligible, placing India in the top 10 countries for eligibility. With the termination, they could face deportation at the discretion of the administration. “We are working with key members of Congress and the administration on this issue,” says Sanjay Puri, chairman of US India Political Action Committee.
Migration Policy Institute (MPI), a nongovernmental organisation in Washington, DC, estimates that there are currently 2,67,000 unauthorised immigrants from India in the US. Trump’s administration has made it clear that anyone in the country without legal status is susceptible to immigration arrest and processing for deportation. “However, enforcement efforts generally prioritise those who have contact with the criminal justice system, and those who were previously ordered to leave the country by immigration enforcement authorities but did not leave,” says Julia Gelatt, senior policy analyst, MPI.
“For DACA holders, their protection from deportation will lapse when their current two-year period of DACA expires. After that, if Congress has not passed new protection, they will likely face the same threat of deportation as other unauthorised immigrants.” After their two-year period ends, DACA holders will not be able to renew their work authorisation documents nor their protection from deportation. The exceptions will be those whose DACA expires before March 5, 2018 — they have until October 5, 2017 to renew. The original DACA programme announced in 2012 was premised on sound public policy and it was not challenged in court.
People enrolled in good faith and became a part of the US economy. To change the policy now and deport these individuals is harmful to the country and to each individual who “came out of the woodworks,” to “regularise” their immigration status,” says Mumbai-based immigration attorney Poorvi Chothani. She adds that for people of Indian origin, being deported to India was a serious concern because to return to India they need travel documents — either an Indian passport or a “travel letter” from the Indian missions in the US.
These might be difficult to procure and if there is a surge in demand it could lead to significant delays as well. Most immigration lawyers are hopeful.
“The administration does not have the ability to deport everyone. Wherever possible, those who lose DACA authorisation will have to get green cards through employment or family sponsorships. Even after the sponsorship has come through (which could take many years for Indians caught in the backlogs), they may have to leave the US and trigger the 10-year bar to re-entry,” Cyrus Mehta warns.
