What is it?
On June 15th, 2012, President Barack Obama announced a policy directing the Department of Homeland Security and its sub-branches which deal with immigration to exercise prosecutorial discretion with regard to certain categories of individuals who came to the country as children and are not currently in lawful status in the United States.
The new measure became popularly known as Deferred Action for Childhood Arrivals (DACA), and President Obama explained that it seeks to help young residents who “were brought to this country by their parents — sometimes even as infants — and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.” Obama’s formal remarks emphasized that the purpose of this measure, like that of the DREAM Act that has stalled in Congress, is to help people who have “been raised as Americans [and] understand themselves to be part of this country.”
In her formal memorandum delineating the purpose of these new measures, Secretary of Homeland Security Janet Napolitano emphasized the need to ensure that the government’s valuable and limited enforcement resources are not used to prosecute and deport “low-priority” individuals who, despite technically violating immigration laws, generally lacked intent.
There are several requirements that an individual must meet to qualify for relief through the DACA program. First, there are several restrictions related to age and timing. An individual must have arrived in the United States before turning 16, must not yet have turned 31 at the time of application, and must have lived continuously in the United States for the five preceding years without leaving the country.
There are some exceptions to the bar against leaving the country. Brief departures, where the trip has been calculated to accomplish a specific purpose for a legitimate reason, do not count against the tally. These trips are examined on a case by case basis and there is no formal maximum length that leads to disqualification. Applicants who have left the country during their five years of residence carry the burden of demonstrating through evidence and documentation both the length and the purpose of the trip. Trip documentation such as tickets, passport stamps, or affidavits can help prove that a trip took place. Departures in response to removal orders or acceptance of voluntary departure would make an individual ineligible for DACA.
The second set of requirements relate to an applicant’s level of education. The applicant must either be currently enrolled in high school or college, be a high school graduate, or have completed a GED. Enrollment in certain job training and educational programs as well as honorable discharge from the Coast Guard or Armed Forces could also satisfy this requirement.
Third, applicants can be disqualified from receiving DACA relief based on their criminal records. Even one conviction can be enough to defeat an individual’s DACA application. An individual is ineligible if he was convicted of a crime where a sentence for more than one year could statutorily be imposed, even if the individual wound up receiving a lesser sentence in that particular case. Notably, for purposes of DACA eligibility, the definition of felony is determined by federal law, so an applicant whose state of residence does not recognize his conviction to be a felony does not affect that applicant’s eligibility unless federal law concurs.
In addition to felony convictions, misdemeanors can also be potential obstacles to eligibility for DACA relief. For purposes of DACA eligibility, misdemeanors are defined by the United States Citizenship and Immigration Services (USCIS), not by state law. Accordingly, it is important to be conscious of any potential inconsistency between the two authorities before submitting an application.
DACA applicants cannot have been convicted of any misdemeanors categorized as “significant” by USCIS, or three or more misdemeanors of any kind. Notable examples of significant misdemeanors include domestic violence, sexual abuse, burglary, drug distribution or trafficking, or driving while intoxicated. While not usually categorized as “significant,” convictions for relatively minor transgressions like traffic violations or driving without a license do still count as misdemeanors and can prevent eligibility for DACA if an applicant accumulates three or more such convictions.
Other related barriers to DACA eligibility include having an adverse juvenile adjudication or being seen as a potential threat to public safety or national security. The government assesses the effect of an adverse juvenile adjudication on a DACA application on a case-by-case basis based on the circumstances and the severity of the violation. Because gang affiliation can be considered behavior that threatens public safety, applicants’ visible tattoos can impede the progress or success of their applications if they correspond to known gang symbols.
What are the benefits?
There are three main benefits to receiving DACA relief. First, receiving DACA relief makes an individual eligible to apply for work authorization and a social security number. For the overwhelming majority of DACA recipients, this is the first opportunity to seek legal employment within the United States. Second, receiving DACA means the closure of any pending removal proceedings against the individual. Third, individuals receiving DACA are eligible for certain state benefits such as receiving a driver’s license or in-state tuition rates at public universities. State-level government officials are divided on the issue and both state attitude and exact benefits received vary by state.
What isn’t DACA?
As previously discussed, DACA relief is an exciting opportunity for many undocumented young individuals in the United States, and will substantially expand their rights in the United States. However, DACA relief is many senses an informal and possibly temporary policy, and accordingly, has many significant shortcomings in terms of the rights and long-term prospects of both applicants and recipients.
First, the administration’s deferred action policy is not a formal law, rule, regulation, or executive order. Technically, it is only a memorandum demonstrating the government’s intent to exercise prosecutorial discretion with regard to individuals who meet a set of pre-determined criteria. Even when deferred action is granted, it is currently guaranteed ony for a period of two years, although it is subject to renewal. Those who are granted DACA relief do not receive any travel permission or lawful permanent resident status. Recipients also receive no pathway to citizenship, and the government makes no long-term promises regarding the legality of their continued presence in the United States. DACA may be a positive step toward integrating the individuals who qualify into mainstream American life by providing certain benefits, but it is not a pathway to lawful status and leaves a great deal on the table in terms of immigration reform.
What are the risks?
DACA relief offers important benefits to individuals who have very few resources and opportunities, but there is also some risk in applying. By applying for DACA relief, the applicant is revealing her identity and location to the government and admitting that he is in the United States illegally. If the application is rejected, the individual is left in a worse situation than he was prior to applying. There is no available mechanism for appeal.
The policy is also discretionary and revocable because it is applied through prosecutorial discretion rather than as the application of any rule or regulation. The measure is not guaranteed to outlast the Obama Administration unless it is formalized in some form, especially if the next President does not share the Obama Administration’s affirmative position regarding rights for undocumented childhood arrivals. Applying for DACA relief necessarily means disclosing your presence to the government for protection that may only be temporary.
As always in the field of immigration law, there is the persistent threat of scammers trying to take advantage of vulnerable applicants by offering fraudulent services or inaccurate information. It is very important and helpful for applicants to consult with an attorney regarding their individual circumstances before applying for DACA, but it is also necessary to remain vigilant and prudent throughout the process to the extent it is possible.
What is the process to apply?
Applicants must complete and submit the following forms. The application fee is $465 ($380 processing fee plus $85 biometrics fee).
- [Form I-821D] Application for Deferred Action for Childhood Arrivals
- [Form I-765] Application for Employment Authorization
- [Form I-765WS] Worksheet for Application for Employment Authorization