A young woman in Florida had held DACA since 2012, traveled on advance parole, married a U.S. citizen, and went to her green card interview. ICE detained her there and deported her within hours because of an old expedited removal order. Immigration attorney Charles Kuck, speaking on a Kuck Baxter Immigration live stream, said the removal itself broke the law.
mic What the Attorney Says
“What ICE did was illegal in deporting her especially within 10 hours. That’s completely insane. That was illegal.”
The core of his point is what DACA is. Deferred Action for Childhood Arrivals is a promise by the government not to act on removal. Someone with valid DACA is, by definition, a person the agency has agreed not to deport.
mic What the Attorney Says
“At the end of the day, DACA means you cannot be deported. That’s what DACA means. So, one, always keep your DACA active.”
The trap is the removal order underneath. Expedited removal under INA 235(b)(1) can be entered at the border in minutes, often when someone is a child traveling with a parent, and the person may never learn it exists. Years later it resurfaces when they file to adjust status and appear in person. Kuck’s first instruction is to find out whether an order is there before filing anything: request your own record, and your parents’ records, through a Freedom of Information Act request to the government.
If an order exists, adjusting inside the U.S. is not the automatic move. A prior removal order generally has to be reopened or waived first: a motion to reopen before the immigration court, or, where unlawful presence is the problem, an I-601A provisional waiver under INA 212(a)(9)(B). An expedited removal makes those waivers harder to win, which is exactly why sequencing matters.
mic What the Attorney Says
“Is it risky to do adjustment with an open order? I would have to say at this point it may be. It may be. Which is why you always want to try the motion to reopen first.”
Kuck said the deported woman can sue and will likely be brought back, and that he is already doing exactly that for another wrongly deported DACA recipient. But the safer path is not to be the test case. Keep your DACA renewed the whole way through, even with a green card pending for years, and do not attend a green card interview alone if there is any chance of an old order, because a lawyer at the table can argue on the spot why you cannot be detained.
This is the same danger behind an old in-absentia removal order that surfaces during a marriage case, and it sits next to the standard DACA advance-parole and I-601A route to a green card. When there is a live order, marrying a citizen while in removal carries its own clear-and-convincing burden that has to be planned around.
Sources
- 8 U.S.C. § 1225, Inspection of applicants for admission (expedited removal, INA 235), Cornell LII open_in_new
- 8 U.S.C. § 1255, Adjustment of status (INA 245), Cornell LII open_in_new
- 8 CFR 1003.23, Reopening or reconsideration before the immigration court, Cornell LII open_in_new
- 8 CFR 212.7(e), Provisional unlawful presence waiver (I-601A), Cornell LII open_in_new
- USCIS, Consideration of Deferred Action for Childhood Arrivals (DACA) open_in_new
- USCIS, Request records through the Freedom of Information Act or Privacy Act open_in_new
- Charles Kuck, Kuck Baxter Immigration live Q&A (YouTube) open_in_new