The following resources and information are for Montclair State University students who are undocumented and/or DACA recipients.
On December 4, 2020, the U.S. District Court for the Eastern District of New York ruled that “the Wolf Memorandum is VACATED. In light of the vacatur, all parties agree that the DACA program is currently governed by its terms as they existed prior to the attempted rescission of September 2017.” The judge’s December 4, 2020 order is in the case Batalla Vidal, et al. v. Nielsen, et al., Case # 1:16-cv-04756.
“in addition to vacating the Wolf Memorandum, the court orders the following relief:
- DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020. The notice must also make clear that deferred action and employment authorization documents (“EADs”) granted for only one year are extended to two years, in line with the pre-Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs, and post it to the docket within 3 calendar days of this Order.”
The following news update was posted by the DHS on December 7, 2020:
“On December 4, 2020, Judge Garaufis required the Department of Homeland Security (DHS) to take certain actions to implement his November 14 opinion. As a result, effective December 7, 2020, U.S. Citizenship and Immigration Services (USCIS) is:
Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
Extending one-year grants of deferred action under DACA to two years; and
Extending one-year employment authorization documents under DACA to two years.
USCIS will take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the Wolf Memorandum.
DHS will comply with Judge Garaufis’ order while it remains in effect, but DHS may seek relief from the order.”
On January 9, 2018, a U.S. District Court ordered the Department of Homeland Security to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments. However, new applications from applicants who have never before received deferred action will not be processed, and DHS may still deny the right of a DACA enrollee to return to the United States if they travel abroad using advance parole. For more information, please refer to U.S. Citizenship and Immigration Services’ website Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction. For guidance on DACA requests rejected by USCIS due to U.S. Postal Service issues, please refer to USCIS’s page Guidance on Rejected DACA Requests.
On August 3, 2018, the U.S. District Court for the District of Columbia again concluded “that DHS’s September 2017 decision to rescind the DACA program…was both subject to judicial review and arbitrary and capricious.” According to D.C. District Judge John D. Bates’ 25-page opinion, “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” The U.S. government appealed the Court’s decision.
On November 8, 2018, the 9th Circuit Court of Appeals issued a decision upholding and continuing the January 9, 2018 preliminary injunction granted by the District Court of the Northern District of California. The National Immigration Law Center explains that “In its decision, the court reasoned that the plaintiffs in the case were likely to prevail on their claim that the Trump administration’s termination of DACA was ‘arbitrary and capricious’ and therefore unlawful. All three judges also noted that there was sufficient evidence that DACA was ended due to anti-Mexican or anti-Latino animus to justify keeping the injunction in place.” It is likely that the U.S. federal government will seek review by the U.S. Supreme Court. Please refer to the NILC’s Status of Current DACA Litigation page for more information.
On June 18, 2020, the U.S. Supreme Court (SCOTUS) held that the 2017 Department of Homeland Security (DHS) memo rescinding DACA was “arbitrary and capricious” under the Administrative Procedure Act in its opinion on the case Department of Homeland Security et al. v. Regents of the University of California et al. This remanded the issue back to the DHS; the agency was required to consider again the “conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” This decision left DACA intact for the time being.
On August 24, 2020, USCIS released implementing guidance (dated August 21, 2020) titled Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2020 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.'” This implementing guidance was summarized in the August 24, 2020 news alert as follows:
“Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.
For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.
USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires. USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.
The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:
Travel to support the national security interests of the United States;
Travel to support U.S. federal law enforcement interests;
Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.
Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.
CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.
If you currently have DACA approval or a pending DACA application, please speak to a licensed, experienced immigration attorney or recognized/accredited organization or representative before making any plans pertaining to work, travel, or applying for a DACA renewal. Among many options, CUNY CLEAR is an excellent resource for free legal services and guidance.
In addition, the National Immigration Law Center (NILC) offers extensive, up-to-date information on DACA, including general advice and support and advocacy resources. The following NILC pages provide useful information:
- NILC Page on DACA
- NILC’s Status of Current DACA Litigation
- NILC FAQ: USCIS Is Accepting DACA Renewal Applications
For more in-depth, timely information on DACA, please refer to the NAFSA: Association of International Educators DACA Resource Page.
Travel Related to Deferred Action for Childhood Arrivals (DACA)
With regard to the September 5, 2017 memo from the DHS rescinding the Deferred Action for Childhood Arrivals (DACA) program, the following is recommended:
If you are an undocumented person (regardless of whether you currently have permission to travel abroad through advance parole), please speak to a licensed, experienced immigration attorney before making any travel plans. Among many options, CUNY CLEAR is an excellent resource for free legal services and guidance.
In-State Tuition under the NJ Dream Act
New Jersey residents who are undocumented under U.S. immigration law or who have been approved under DACA (Deferred Action for Childhood Arrivals) by U.S. Citizenship and Immigration Services may qualify for in-state tuition under P.L. 2013, c. 170 (NJ Senate Bill 2479), the New Jersey Tuition Equality Act, also referred to as the “New Jersey Dream Act.” Under this law, undocumented students are exempt from paying out-of-state tuition if they meet all of the following criteria:
- Attended a New Jersey high school for three or more years;
- Graduated from a New Jersey high school or received the equivalent of a high school diploma in New Jersey;
- Register as an entering student or are currently enrolled in a public institution of higher education not earlier than the fall semester of the 2013-2014 academic year; and
- In the case of a person without lawful immigration status, file the Affidavit of Intent to Legalize Immigration Status each year (as required by the state of New Jersey) with Montclair State University.
For more information and instructions on applying for in-state tuition, please visit: New Jersey Dream Act. Affidavits must be filed with Undergraduate Admissions or the Graduate School each year; for points-of-contact for these offices, please contact Elizabeth Gill, Director of International Employment and Immigration in the Office of University Counsel.
Financial Aid for Undocumented Students
New Jersey Governor Phil Murphy signed legislation (P.L. 2018, c. 12) granting eligible undocumented students access to NJ State Financial Aid. Please refer to New Jersey Dreamers for information about the bill and its requirements for qualifying for state aid.
In addition, the Scholarships That Do Not Require FAFSA web page contains a list of scholarships that do not require FASFA verification.
For financial aid questions pertaining to undocumented students, please contact Chandra Sakajani, Assistant Director of Financial Aid.
The following articles and pages should prove helpful in staying abreast of issues pertaining to undocumented students:
- American Civil Liberties Union (ACLU)
- ACLU: “Your Rights in the Border Zone”
- ACLU: “Know Your Rights: What To Do If You’re Stopped By Police, Immigration Agents or the FBI”
- CUNY CLEAR Legal Services
- Montclair State University Financial Aid for New Jersey DREAMers
- NAFSA: Association of International Educators Indefinite Entry Bar Under Executive Order
- Although some of the information is no longer applicable, this June 2017 article from the National Association of Student Financial Aid Administrators (NASFAA) has some helpful information for undocumented students about paying for college.
- NILC Page on DACA
- NILC’s Status of Current DACA Litigation
- NILC FAQ: USCIS Is Accepting DACA Renewal Applications
Please keep in mind that the information contained on this page and in the advisories and pages listed above does not constitute legal advice. Please speak to a licensed, experienced immigration attorney if you require legal counsel.
Conversations without Walls
This conversation group is for all immigrants– documented and undocumented– and allies to connect and share their experiences in a welcoming environment. For this semester’s schedule and details, view the flyer.
Connecting across Cultures
Counseling and Psychological Services (CAPS) holds this informal, supportive discussion group for international students, students who have studied abroad, and any students who are interested in dialoguing and connecting across cultures. Visit the Connecting across Cultures page for more information.
Social Justice and Diversity Discussion Groups
The Office for Social Justice and Diversity hosts a number of discussion groups for undergraduate and graduate students who share similar identities to come together in a welcoming environment to build community, share experiences, and support one another. Visit the Office for Social Justice and Diversity Discussion Groups page for more information.
Students who have individual concerns are encouraged to contact the Office of the Dean of Students, and they may also take advantage of the resources offered through Counseling and Psychological Services, including short-term individual counseling, group therapy, psychiatry, Let’s Talk walk-in sessions, and more. Contact information for CAPS is located here.