Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, the Obama Administration announced a policy of deferred action for childhood arrivals (DACA) whereby the US government will not remove certain individuals who are currently without legal status in the US and who entered the country before the age of 16. Relief will be granted on a case-by-case basis provided that the individual passes background checks. Deferred action will essentially provide temporary authorized status in the US and employment authorization.
The individual applying for deferred action must satisfy the following eligibility requirements:
- Entered the US under the age of sixteen;
- Continuously resided in the US for at least five years before June 15, 2012;
- Was present in the US on June 15, 2012, and without status;
- Is currently be enrolled in school, have graduated from high school, have obtained a general education development certificate (GED) or be an honorably discharged veteran of the Coast Guard or Armed Forces of the US;
- Has not been convicted of a felony, serious misdemeanor, three or more misdemeanors or otherwise pose a threat to the national security or public safety of the US; and
- Was under 31 years of age as of June 15, 2012.
What kind of status does deferred action afford?
Deferred action provides temporary protection from removal in the US. However, it does not provide status as a lawful nonimmigrant, legal permanent resident or a US citizen, nor a pathway to them. While it does not cure past unlawful status, the period of stay under deferred action is considered authorized status in the US. In other words, time spent in the US under deferred action (or while the DACA application is pending if filed before the age of 18) is not unlawful presence for purposes of the bars to admissibility of INA §212(a)(9)(B) and (C)(i)(I).
The bars under INA §212(a)(9)(B) are only triggered when an individual who has acquired a certain amount of unlawful presence departs the US. An individual is barred for three years from entering the US if he or she overstayed in the US more than 180 days consecutively but less than one year, and is barred for 10 years if she or she overstayed for one year or more consecutively. Determining unlawful presence is a highly complicated matter and the individual should seek an attorney’s counsel on this matter.
Instead of deferred action, the new policy should be called deferred dreams, since the deferred action policy is the poor stepchild of the Dream Act legislation, which would grant legal permanent residency to roughly the same group of individuals. While partial protection may be better than a complete lack of benefits, it causes a legal limbo and an anxiety about the future. Should a young person granted deferred action invest in college if he can be turned away from the US several years later? Should she start a family if she may be forcefully separated from family members sometime in the future?
When and where can one apply?
August 15, 2012, is the earliest that one can apply. Applications are sent to US Citizenship and Immigration Services (USCIS).
Is there a minimum age requirement to file?
One must be over 15 years of age if not in removal proceedings. If in removal proceedings or subject to an order of removal or voluntary departure then the individual can be under 15.
How long does it last?
Deferred action status is renewable in two year increments. However, it is not clear what happens when the alien turns 30 years old.
Is it a guaranteed benefit?
No. An individual is eligible based on satisfying the above criteria, but it is still a discretionary decision. USCIS will make its determinations on a case-by-case basis.
What crimes disqualify an individual under DACA?
A conviction for a felony, serious misdemeanor and three or more misdemeanors render an individual ineligible for deferred action, unless exceptional circumstances can be demonstrated (this has not been defined yet). A felony is defined as a crime for which a sentence of more than one year may be imposed. A significant misdemeanor is any misdemeanor involving burglary, domestic abuse, sexual abuse or exploitation, unlawful firearm possession or use, driving under the influence or drug distribution or trafficking. It is also any misdemeanor where the sentence is more than 90 days of imprisonment not including suspended sentences, pretrial detention or time spent under an immigration detainer. A minor traffic offense is not considered a misdemeanor for purposes of this application.
The absence of a criminal record discussed above is not a guarantee that the application will be approved, but is a favorable factor among the total of circumstances in granting the relief.
Are there any bars to deferred action?
An individual deemed a threat to national security or public safety will be barred from applying for deferred action. Activities falling under these threats include participation in criminal activity and gang membership.
How is “continuous presence” defined?
Continuous presence does not require uninterrupted physical presence for the five-year period. Rather, brief, casual and innocent absences from the US do not interrupt continuous presence.
What types of evidence is required to show continuous residence in the US?
Evidence may include financial, medical, school, employment, military and immigration court records; immigration and other federal agency applications, correspondence with federal agencies, marriage certificates, birth certificates of children born in the US, utility bills and lease and rental records. Other circumstantial (indirect) evidence is acceptable. Affidavits alone will not suffice.
What evidence is required for obtaining employment authorization?
One must show economic necessity, which is not the same as extreme hardship.
When does one have to be “currently in school”?
One must be currently in school as of the date of filing the DACA application.
What is considered current enrollment in school?
One must be enrolled in one of the following institutions:
- a public or private elementary, junior high, middle or high school or a secondary school;
- an education, literacy or training program that leads to enrollment in post-secondary education, job training or employment; or
- an education program to help the individual obtain a high school diploma or pass the General Education Development (GED) exam or another authorized state exam.
Can a person in status (nonimmigrant status such as F-1, H-1B, L-1B or E-2 or have Temporary Protected Status) apply for DACA?
No. The individual must have been out of status in the US on June 15, 2012, and also at the time of filing. A pending asylum application or cancellation of removal application does not qualify as status and therefore the individual with such a pending case may apply. It is not yet known whether a person with a pending Form I-485 application to adjust status is eligible.
May an individual travel abroad while under a grant of deferred action?
Yes, one may obtain advance parole to travel abroad while under a grant of deferred action. However, the individual should consult with an attorney to determine if such travel is wise or would subject that person to severe immigration bars to admission. Also, the applicant must wait until deferred action is approved and the advance parole document is issued to travel abroad or will be disqualified from DACA. An application for advance parole may only be filed after the DACA application is approved.
What happens if USCIS denies consideration for deferred action?
If the case does not involve a crime, fraud or a threat to national security or public safety then USCIS will not send the case to ICE for removal proceedings, unless there are exceptional circumstances. One cannot appeal or file a motion to reopen or consider a denial of a DACA application. However, it is possible to request review of a denial that was due to USCIS’s error in finding that the applicant failed to submit a timely response for additional evidence (RFE) or USCIS’s error in sending the RFE to the wrong address where the applicant had notified USCIS of a change of address before the RFE was issued.
What if the individual is in removal proceedings?
The individual must file affirmatively with USCIS and then request the immigration judge to terminate proceedings.
May family members apply with the eligible individual?
No. Unlike certain immigrant visa petitions, there is no dependent status for family members and an application for deferred action confers status only on that individual applicant.
Is the information in a DACA application confidential?
Yes and no. USCIS will not share the information in the application with US Immigration and Customs Enforcement (ICE) or US Customs and Border Protection (CBP) for purposes of removal unless the applicant meets the criteria to be placed in removal proceedings (which can be found at www.uscis.gov/NTA). However, the information may be shared with national security and law enforcement agencies for purposes other than removal.
Are family members without status in the US at risk of removal based on information in a DACA application?
No. Information related to family members is not sent to US ICE if the individual’s case is referred to US ICE. However, the information may be shared with national security and law enforcement agencies for purposes other than removal.