Law and Software

DAPA – my concerns

[November, 2014] By Andy Bartlett. Filed under: DACA,DAPA,Immigration Law

I haven’t changed my view from August about deferred action. But it is all we’re likely to get for a while, so I’ll quit complaining about it, and get on with the work.  My concern is that the nonprofits gearing up for the very large DAPA demand are going to follow the same strategy of workshops and volunteers that they used for DACA.

Please note, this is not an anti-nonprofit post. The workshop/volunteer model did push through very large numbers of DACA applications in a very short period. It was hugely successful. My concern is that “those in charge” will see DAPA as a replay of DACA. And it isn’t.

A few of my DACA clients have been kids in school. And their applications have been very easy. Most are older people. I chose to take these difficult cases. They were the people who went to the workshops, received very little help and gave up. Until they stumbled upon my practice. I decided to charge them almost nothing to help them, and learned a number of lessons. I suspect there are many still out there who have still not filed, because it is just too hard for working adults to gather the evidence without significant help. The workshop model fails them. And the new DAPA class are just like them. The workshop model is likely to fail them too.

We can learn from global health nonprofits here. My role has not been so much as a lawyer but as an accompagneur. Someone who takes the client through the evidence gathering and packet-construction process.  A friend and a guide. Partners in Health and other NGOs have developed this strategy in their TB programs – that require regular work with the patient over a period of months. See their Sputnik program as an example.

Most of the new DAPA clients will need a friend –  an accompagneur – to help them through the process. Or there will be 40,000 rather than 4 million successful applications. None of my adult DACA clients could have been successful without this personal guidance.

There is a large group of potential ready-made DAPA guides – the current DACA dreamers. They all went through the process. Many understand the challenges and frustrations of evidence gathering. They all know that the end is worth the effort. Pairing a DACA recipient with a DAPA applicant is almost a guarantee of a good outcome. And it will happen in mixed-status families with DACA + citizen children. They will help their parents. But many DACA families don’t have citizen children. And these dreamers feel very left out by this new executive order since their parents have not been included.

Sadly, I doubt the dreamers will step forward en masse. I’d love to be proved wrong, but I fear I am right. But accompagneurs can be trained. And as the DAPA program continues, early applicants can be encouraged to help those that come later. And if there is one resource that nonprofits have it is volunteers looking to help.

My DAPA clients will benefit from an accompagneur program on day 1. Both in the nonprofit and in my private practice. But I suspect that most nonprofits will have to learn through failure before they adapt. They have only seen the great successes of their DACA programs, and they don’t have a sense of all the people who left their workshops disillusioned, scared and very doubtful. It won’t take them long to realize that what worked for the children is not going to work for the parents. And that is going to trigger real change, as it has in global health.

When you are dealing with TB, access to treatment is not what matters. The outcome matters. You don’t measure success by the number who come through the door. Your metric is the percentage of these people who have a successful outcome. That realization hasn’t yet reached the legal services nonprofits. They are structured for access to justice. All that matters is the head count. DAPA and the need for committed guidance will change everything.

Of course, I am basing this on my experience with the difficult DACA cases. And while the nonprofits may not know too much about these people who fell through the cracks, USCIS does. And the people who are drafting the new rules might realize that DACA-like requirements will cause serious problems. So they might restructure the evidence requirement differently. For example, they might center it on the presence of the child, and proof that the parents are the primary caregivers for that child. There is some suggestion of this, since the wording of the order was not continuous presence since 2010 but continuous residence.  We will find out next May.



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