Effective August 15, 2012, individuals who were brought to the U.S. as young children and who can demonstrate that they meet key eligibility criteria may request consideration of “deferred action for childhood arrivals” (DACA). President Obama announced the program on June 15, 2012, and ordered that the program be in place within in two months. Eligible undocumented individuals will receive “deferred action” and work authorization for a period of two years. Deferred action means that the government will not seek to remove these individuals.
In order to be considered for deferred action, the individual:
• Must have been under the age of 31 and present in the U.S. on June 15, 2012;
• Must have been under the age of 16 when brought to this country;
• Must have continuously resided in the U.S. for at least five years before June 15, 2012;
• Must be physically present in the United States at the time of making a request for deferred action;
• Must be currently in school or have graduated from high school (or have received a GED certificate), or have been honorably discharged from the U.S. Armed Forces or Coast Guard;
• Must not be convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors, or otherwise pose a threat to national security or public safety;
• Must be at least 15 years of age at the time of application (unless in removal proceedings, have a final removal order, or have a voluntary departure order);
• Must complete a background check.
Deferred action does not provide lawful status or a pathway to citizenship or green card status but instead is a form of prosecutorial discretion that takes the immediate threat of deportation off the back of those young people who lived with the fear of being returned to a “home” country many know nothing about. It is a great start but does not change the law or the need for a permanent solution for these and other deserving undocumented residents.
As many as 1.76 million unauthorized immigrants under the age of 31 who were brought to the United States as children could gain a two-year grant of relief from deportation, according to the Migration Policy Institute (MPI). Of this number, MPI estimates that some 350,000 undocumented young adult immigrants (ages 16 and older) without a high school degree or GED could potentially be eligible for DACA relief if they meet the other enrollment criteria because DHS has clarified that individuals lacking a high school diploma would be eligible to apply as long as they have re-enrolled in school by the date of their application or obtained their GED certificate at the time of application. There is no time limit to apply, except for the age 31cut-off.
To apply for deferred action for childhood arrivals, individuals must submit three forms: (1) a new form, Form I-821D, Consideration of Deferred Action for Childhood Arrivals; (2) Form I-765, Application for Work Authorization; and (3) Form I-765WS, Worksheet. The filing fee is $465. A fee exemption request may be made but is subject to stringent conditions and must be filed and favorably adjudicated before an individual files for deferred action. USCIS estimates that it will take several months to process a DACA request.
Getting a work permit will allow an individual to obtain a valid Social Security number, apply for a driver’s license, open a bank account, and other important benefits. This alone will be a huge benefit for those eligible applicants.
In addition to the filing fee, I-821 applications must be accompanied by documentary evidence that demonstrates that the individual meets the guidelines, including (1) proof of identity; (2) proof of immigration status; (3) proof that he or she came to the U.S. before his or her 16th birthday; (4) proof of presence in the U.S. on June 15, 2012; (5) proof of continuously residing in the U.S. since June 15, 2007; and (6) proof of student status at the time of requesting consideration of deferred action or proof of honorable discharge from the U.S. Armed Forces or the U.S. Coast Guard. USCIS provides a non-exhaustive list of acceptable documentation that may be used to support an application. Affidavits, a common form of evidence used in immigration processing when other documents are not available, generally will be insufficient on their own to document the requirements; they may, however, be used to support a gap in documentation demonstrating the five-year continuous residence requirement and a shortcoming in documentation with respect to “brief, casual and innocent” departures during the five years of required continuous presence.
USCIS has made clear that DACA applicants may not travel outside of the U.S. after August 15, 2012. However, if DACA is granted, a DACA beneficiary can be permitted to travel outside of the U.S. if the individual applies for and receives advance parole from USCIS. USCIS has advised, however, that advance parole will be granted only if such travel is for humanitarian purposes, educational purposes, or employment purposes. In other words, advance parole is not likely to be granted for travel just to visit relatives abroad or for tourism.
Many otherwise eligible applicants will be ineligible for DACA relief because of certain offenses, including federal felonies and certain misdemeanors unless DHS determines that there are exceptional circumstances. The intersection of criminal law and immigration law is an area that is particularly complex and under this program these provisions are certain to require further interpretation and guidance.
Under the eligibility requirements, if an individual has been convicted of a “significant misdemeanor,” he or she is ineligible. Disqualifying significant misdemeanors include driving under the influence, burglary, unlawful possession or use of a firearm, domestic violence, sexual abuse or exploitation, drug distribution or trafficking, or where the individual was sentenced to time in custody of more than 90 days. A felony is a criminal offense punishable by imprisonment for a term exceeding one year.
Three or more non-significant misdemeanors also disqualify an individual. USCIS specifically states that minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “three or more” rule, but USCIS advises that it will consider an individual’s entire offense history along with other facts to determine whether, under a totality of the circumstances, an exercise of deferred action is warranted. Convictions that have been expunged as well as juvenile convictions will not automatically disqualify an applicant but will be assessed on a case-by-case basis. This is a departure from immigration law precedent, which treats expunged convictions as convictions for immigration purposes.
Because an individual must go through background checks, other disqualifying activities can be uncovered during those checks that could trigger a finding that the individual is a national security or public safety threat, another disqualifying factor. One such indicator is gang membership.
Those individuals who are currently in immigration detention or face imminent removal are subject to special rules and have been instructed to contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 or by email at EROPublicAdvocate@ice.dhs.gov.
All in all, the application process seems fairly straightforward and USCIS has tried to issue thorough and thought-out instructions even though issues will arise as cases are processed and terms are further interpreted. In addition, issues surrounding the process may not be as straightforward. Each person will be revealing him- or herself to the government, and while DHS has offered some level of assurance regarding confidentiality, those assurances are fairly weak. For example, DHS states that information provided in the request for DACA is protected from disclosure to ICE and CBP for immigration enforcement proceedings, “unless the requestor meets the criteria for the issuance of a ‘Notice to Appear.’” Moreover, while information about family members will not be referred to ICE, “that information may be shared with national security and law enforcement agencies.” It remains to be seen how exactly the government implements information sharing.
Because of the overall complexity of immigration law, even the simplest process can be fraught with pitfalls and unintended consequences. Speaking with an immigration lawyer before applying is smart and safe. Those who believe they may qualify are strongly encourage to seek out an experienced immigration attorney, either through pro bono activities surrounding the DACA initiative or at private law firms who can further assess eligibility.