On June 15, 2012, President Obama announced that the U.S. Dept. Homeland Security would not deport certain DREAM Act–eligible undocumented youth. Under a directive from the secretary of DHS, these youth will be given temporary relief called “deferred action.” Below is a Q&A on Deferred Action for Childhood Arrivals “DACA.” If you have a question that is not answered below, feel free to contact our office for a consultation. Our attorney has been committed to providing pro bono and low bono legal assistance to immigrant children and youth.
1. What exactly is “deferred action”? “Deferred action” is when the immigration authorities decide in the exercise of discretion that it is not in the public interest to remove a person who lacks valid immigration status. It results in a temporary grant of permission to remain in the U.S. and to work. The practice is not new. Historically, USCIS has granted it to persons found to have suffered domestic or other serious crimes while they awaited eligibility to apply for lawful permanent resident status or U nonimmigrant status.
2. How will DACA work for Dreamers? This policy provides two years of deferred action and work authorization for these individuals. Individuals who qualify will apply for a benefit known as “deferred action” through USCIS. As a part of that application, the individual will also apply for work authorization. There are two types of individuals who will be eligible for this Deferred Action – individuals currently in Removal/Deportation Proceedings and individuals not in Proceedings. For those individuals currently in removal proceedings, Deferred Action can be applied for through the Immigration Court Process.
3. What are the requirements to apply for those individuals not already in removal proceedings?
-Were under the age of 31 as of June 15, 2012;
-Came to the United States before reaching 16th birthday;
-Have continuously resided in the United States since June 15, 2007, up to the present time;
-Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
-Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
-Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
-Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety; and
-Are at least 15 at the time of filing.
4. What offenses constitute a non-significant misdemeanor? For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
**Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
**Is one for which the individual was sentenced to time in custody of 90 days or less. A driving under the influence is a significant misdemeanor regardless of the sentence imposed.
Note that the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances.
A minor traffic offense, such as driving without a license, will not normally be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors.” However, an individual’s entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, one warrants an exercise of prosecutorial discretion.
5. Does the continuous residence requirement for 5 years mean that a person never left the during US those years?
No. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence if it was before August 15, 2012, and
a. The absence was short and reasonably calculated to accomplish the purpose for the absence;
b. The absence was not because of an order of exclusion, deportation, or removal;
c. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
d. The purpose of the absence and/or your actions while outside the United States were not contrary to law.
It is important to note that what will constitute “short and reasonably calculated to accomplish the purpose for the absence” is not defined by the USCIS memo and will be determined by USCIS on a case-by-case basis.
6. What forms are used to apply for DACA?
Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The required forms are: I-821D, I-765 and the I-765WS
7. How much is the filing fee?
The government filing fees will be $465.
8. When can someone eligible apply for DACA?
Individuals may begin to request consideration of deferred action for childhood arrivals on August 15, 2012. If you file early, your request will be rejected.
9. Are there any dangers in applying affirmatively for DACA?
I believe there are numerous concerns present with the Deferred Action program. First, there is no guarantee that the next administration will continue the program. Romney has already said he would end it. The program also does not provide a path to permanent residency in the United States. There is no indication yet of what will happen when someone ages out (turns 31). Finally, it is not clear what will happen if a deferred action application is rejected. It could potentially trigger removal proceedings, especially if there is a criminal record involved. USCIS has stated that the requestor could be referred if s/he meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).
USCIS has also stated that individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. However, the information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
10. Is an attorney necessary to apply for DACA? Because of the concerns mentioned above, all would be applicants would benefit from consulting with an experienced immigration attorney before submitting an application. Beware of non attorneys and attorneys who do not practice immigration law offering consultations. Only an experienced immigration attorney can do a thorough case evaluation and give an honest assessment on the risks involved. In addition, the immigration attorney should be able to assist in obtaining evidence to meet the requirements. Legal terms such as “continuous residence ” and “serious crimes” are not new to experienced immigration practitioners. You can find another perspective on the question of whether an attorney is necessary here.
11. What is the process for an individual who is already in removal proceedings?
Undocumented persons who meet the above requirements who are already in removal proceedings should seek assistance from a licensed immigration attorney. Non-detained persons in removal proceedings may apply to USCIS for deferred action. Detained persons must apply through ICE.
12. Does deferred action excuse previous periods of unlawful presence or illegal entry? No.
13. Does DACA provide a pathway to legal status? No. Deferred action does not provide lawful status or a pathway to citizenship. Only the Congress, acting through its legislative authority, can change the law to provide such a pathway to permanent lawful status. In addition, USCIS has stated that this policy “may be modified, superseded, or rescinded at any time without notice, [and] is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”
14. Can a person be considered for deferred action even if s/he does not meet the guidelines to be considered for deferred action for childhood arrivals?
While this process is only for individuals who meet the specific guidelines announced by the Secretary and outlined above, USCIS has stated that other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.
Check back for more information to be updated the week of August 15, 2012.