The DACA program was enacted by the administration of former President Barack Obama on June 15, 2012, through a Department of Homeland Security (DHS) memorandum authored by then-Secretary of Homeland Security Janet Napolitano.
What is the Deferred Action for Childhood Arrivals (DACA) Program?The DACA program was enacted by the administration of former President Barack Obama on June 15, 2012, through a Department of Homeland Security (DHS) memorandum authored by then-Secretary of Homeland Security Janet Napolitano.
The DACA memorandum instructs immigration agencies to exercise prosecutorial discretion towards certain aliens present in the United States without legal authorization who arrived in the United States as children. Understanding that DACA is based on "prosecutorial discretion" is key. In short, this means that DACA beneficiaries remain removable under the immigration statutes, but they are permitted to stay - provided they adhere to certain conditions - as an exercise of discretion on the part of the DHS.
In this article, we will examine the DACA memorandum and subsequent United States Citizenship and Immigration Services (USCIS) guidance found on its website to provide an overview of DACA.
Who is Eligible for Relief Under Deferred Action for Childhood Arrivals?DACA is not available to all aliens who arrived in the United States as children and lack legal status, but only to a limited subset thereof.
In order to apply for DACA for the first time, the applicant must have been under the age of 31 as of June 15, 2012, must have come to the United States prior to his or her 16th birthday, and must have continuously resided in the United States since June 15, 2007, until making the application. The applicant must have been physically present in the United States on June 15, 2012, and at the time he or she applies for DACA. The applicant must have lacked lawful status in the United States on June 15, 2012. "Brief, casual, and innocent" departures between on or after June 15, 2007, but before August 15, 2012, will not be considered interruptive of continuous residence for first-time applicants.
In addition to these requirements, there is an education or military service requirement for DACA eligibility. An individual who is currently in school is eligible for DACA. An individual who is not in school and who is otherwise eligible must have graduated high school or have obtained a GED, or must be an honorably discharged veteran of the Coast Guard or the Armed Forces of the United States.
Finally, the DACA applicant will be ineligible if he or she has been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors. A DACA applicant will also be ineligible for DACA if it is determined that he or she otherwise poses a threat to national security or public safety.
In general, an individual must be 15 years or older in order to apply for DACA. However, an individual younger than 15 may apply for DACA if he or she is otherwise eligible and currently in removal proceedings or subject to a final removal or voluntary departure order.
Filing an Application for Deferred Action for Childhood ArrivalsThe DACA application is filed on the Form I-821D, Consideration for Deferred Action for Childhood Arrivals. Applicants for DACA are also required to file the Form I-765, Application for Employment Authorization, and the Form I-765WS, Form I-765 Worksheet. The Form I-821D has a non-waivable application fee of $495. The Form I-765 also has a non-waivable application fee of $495 (including biometrics fee). However, in very limited circumstances, a DACA applicant may be eligible for a fee exemption. These same forms are required for DACA renewal applicants.
Applicants seeking DACA for the first time must submit extensive documentation establishing their eligibility for DACA. For this reason, DACA applicants are strongly advised to work closely with an experienced immigration attorney.
Applicants seeking to renew DACA generally do not need to submit new documentation unless immigration or criminal circumstances arose subsequent to the previous DACA application.
There is no appeal from the denial of a DACA application. This is because the decision whether to grant DACA is discretionary. However, an applicant may contact the USCIS if he or she believes that the application was denied because of an administrative error on the part of the USCIS.
Maintaining and Renewing Deferred Action for Childhood ArrivalsDACA status may be approved in increments of two years. DACA recipients are advised by the USCIS to apply for renewal between 120 and 150 days prior to the expiration of their Employment Authorization Documents (EADs). DACA can be rescinded at any time.
A small subset of DACA recipients received DACA for periods of three years. Although that three-year period will not be curtailed, those DACA recipients will thereafter only be eligible for two-year extensions, provided that DACA remains in effect.
While on DACA, a recipient may attend school or engage in employment under his or her EAD.
DACA recipients must be careful about any departures from the United States. An unauthorized departure will interrupt continuous residence in the United States. Prior to departing the United States, a DACA recipient should apply for advance parole by filing the Form I-131, Application for Travel Document. Individuals who have previously been ordered deported or removed must be especially careful. Before considering applying for advance parole, a DACA recipient should discuss his or her specific situation with an experienced immigration attorney.
Any violations of DACA status can lead to the termination of DACA and render the DACA recipient subject to removal.
While deferred action is in effect, a DACA recipient does not accrue unlawful presence for purpose of the 3- and 10-year inadmissibility bars. However, DACA does not excuse any prior or subsequent periods of unlawful presence.
Uncertain Future for Deferred Action for Childhood ArrivalsTwo events have thrown the future of DACA into doubt. First, former President Obama's expanded Deferred Action for Parents of Americans (DAPA), which included limited expansions to DACA, was stymied in Federal courts. Ultimately, the DHS under President Donald Trump rescinded the DAPA memorandum, including its provisions expanding DACA benefits.
The second event was the election of President Trump. During the campaign, President Trump stated his opposition to DACA while simultaneously signaling his openness to a more permanent solution for beneficiaries of the program. Since taking office, the Trump Administration has continued to implement DACA.
However, after succeeding in its challenge to DAPA, Texas (joined by several other states) informed the Trump Administration that it would challenge the legality of DACA if the Trump Administration does not cease issuing new DACA permits by September 5, 2017. It is important to note that Texas is not insisting that the Trump Administration rescind DACA permits already in effect or prioritize the removal of those eligible for benefits under the current DACA memorandum. However, Texas is seeking the end of the DACA program going forward.
Thus far, the Trump Administration has not given a definitive answer to the question of whether it will take steps to end the DACA program or instead opt to defend its legality in court. The DHS has indicated that it has doubts as to whether the program would be upheld in court, notwithstanding support for the policy from the Secretary of Homeland Security. To be sure, it is quite possible that, given their similar structures, DACA would be susceptible to some of the same challenges that ultimately prevented the broader DAPA program from taking effect.
In response, Senators Lindsey Graham and Dick Durbin have introduced "Dream Act" legislation to provide for a statutory solution for many of the individuals benefitting from DACA.
It remains to be seen whether the Trump Administration will defend DACA and whether legislative efforts in congress will gain traction.
ConclusionDACA provides important but also limited benefits to those who are eligible. DACA allows a limited class of individuals who are in the United States without legal authorization to work legally and not be targeted for removal. However, DACA does not confer an immigration status, and it does not provide any benefits besides work authorization, the ability to travel on advance parole, and limited protection from immigration enforcement.
Because DACA was implemented by memorandum rather than by statute or even regulation, the program faces great uncertainty. Firstly, it is unclear whether the Trump Administration will maintain it going forward. Secondly, if the Trump Administration decides to continue implementing the program, it will likely face difficult prospects in federal courts.
Those who are currently on DACA or who are considering applying for DACA should consult with an experienced immigration attorney for case-specific guidance.