What DACA Is, and What It Isn’t
DACA not only defers deportation, it can also defer possible immigration benefits—in particular, a grant of legal status by immigration authorities. For many undocumented youth, this is a dream deferred. DACA is not the DREAM Act (Development, Relief and Education for Alien Minors Act), which would have granted permanent legal residency status to minors meeting certain criteria. Rather, it is the executive’s response to Congress’s failure to pass the DREAM Act. DACA is not a grant of legal status or amnesty (although it has been criticized as selective amnesty). It is not issuance of a green card. It is not a path to the military or a path to citizenship. And in the same manner DACA was implemented, it can be rescinded; it is not law and so can be modified or superseded at any time, without notice.
Nevertheless, the judicial branch has consistently recognized the authority of the executive to enforce immigration laws, including the authority to prioritize enforcement action and exercise prosecutorial discretion. Mandates by DHS for the exercise of prosecutorial discretion issued long prior to DACA’s announcement in 2012 can be found in various DHS policy memoranda. Two examples include a 2005 memorandum issued by William J. Howard, ICE principal legal advisor, explaining that “[Immigration] Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process—from planning investigations to enforcing final orders. . . .” And a 2011 memorandum from John Morton, immediate past director of ICE, titled Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, stated, “Prosecutorial discretion is a very significant tool that sometimes enables you to deal with the difficult, complex and contradictory provisions of the immigration laws and cases involving human suffering and hardship. . . .”
Basic DACA Eligibility Guidelines
Those who are eligible to be considered on an individualized basis for DACA must meet several key guidelines. The following requirements of a DACA requestor comprise an initial intake checklist:
- Proof of identity;
- Proof of arrival in the United States before reaching the age of 16;
- Proof of being under the age of 31 on June 15, 2012, and, if not in removal proceedings, at least 15 on the date of filing the request;
- Proof of continuous residence in the United States since June 15, 2007 (the five-year period preceding the announcement of DACA), up to the present time;
- Proof of physical presence in the United States on June 15, 2012 (the date of the announcement of DACA by Secretary Napolitano), and presence in the United States on the date of making the request;
- Proof of current enrollment in school, or graduation or receipt of a certificate of completion from high school, or general educational development (GED) certificate, or honorable discharge from the Coast Guard or Armed Forces of the United States (this requirement has been clarified to also permit the requestor to be currently enrolled in a GED program); and
- Proof of no convictions for a felony offense, a significant misdemeanor offense, or three or more misdemeanor offenses, and proof that the requestor does not otherwise pose a threat to national security or public safety.
The DACA Request Process
In early August 2012, DHS issued its National Standard Operating Procedures (SOP) for DACA, and on August 15, 2012, DHS began accepting DACA requests. The process is not an application process but a request process. The request for DACA is made on Form I-821D (Consideration of Deferred Action for Childhood Arrivals). Each request for deferred action is for a period of two years, subject to renewal, and must be accompanied by Form I-765 (Application for Employment Authorization) and a supporting work sheet, Form I-765WS, evidencing economic necessity to work. The filing fee of $465 required by the government is for the Employment Authorization Document (EAD) application and biometrics, not for the DACA request. The fee cannot be waived, except under the most extraordinary circumstances.
Basic procedure. A DACA request is made to U.S. Citizenship and Immigration Services (USCIS, part of the DHS) by submission of the required forms, supported by verifying documentation, and payment of the $465 fee. In addition, Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) is required if an attorney or other authorized person prepares the request; Form G-1145 (E-Notification of Application/Petition Acceptance), permitting electronic notification of acceptance of the filing, is optional. After submission of the request to the government, a biometrics appointment is scheduled for the requestor. Biometrics is the measurement and analysis of unique physical or behavioral characteristics (such as fingerprints) used to verify personal identity. At the biometrics appointment, a USCIS Application Support Center officer takes fingerprints and photos. Fingerprints are sent to the U.S. Federal Bureau of Investigation (FBI), and a report is returned to USCIS confirming identity and the requestor’s criminal and immigration-history background. After the DACA request is processed, the requestor is notified of a grant, a notice of intent to deny, or a denial, or is asked to submit further supporting evidence.
If a favorable decision is rendered, the requestor is granted a two-year reprieve from immigration enforcement action and work authorization through issuance of an EAD, commonly referred to as a “work card.” The EAD is renewable upon expiration of the two-year initial grant.
Preliminary analysis of DACA eligibility and completion of the government request forms are relatively straightforward undertakings; in between these two steps, a great deal of work is required. Analysis of the potential consequences and risks attendant to submitting the request requires careful effort. Collection, assembly, and production of supporting documentation also become considerable challenges in the DACA process.
Risk assessment. It is estimated that more than 1.8 million undocumented youth and young adults are eligible for DACA. Nearly half of potential DACA beneficiaries reside in California and Texas, and significantly more than half are Mexican foreign nationals. A large number of DACA-eligible candidates reside in rural areas, with limited if any access to counsel, and many have not yet filed DACA requests. Since the June 2012 announcement, more than 573,000 requests have been filed, of which more than 430,000 have been granted. It is also estimated that 400,000 more candidates are immediately eligible, another 500,000 can become eligible by satisfying the education criterion, and another 400,000 will become eligible once they turn 15.
As noted above, DACA is a temporary, discretionary action not resulting legal status. A requestor remains at risk that, eventually, enforcement could be reactivated. Furthermore, DACA has met with significant opposition, putting its viability at risk, including in litigation pending in the U.S. District Court for the Northern District of Texas. In that lawsuit, brought by ICE agents represented by Kansas Secretary of State Kris Kobach, the judge has suggested in a preliminary ruling (pending as of this writing) that he may declare DACA to be illegal. In June 2013, Republican members of the House of Representatives voted to defund DACA in an amendment attached to a Homeland Security appropriations bill sponsored by Iowa Representative Steve King. On the other hand, provisions in the immigration reform bill passed out of the Senate in June 2013 presume the viability of DACA and provide for some significant advantages pertaining to legalization of status for those who have been DACA approved, which, in turn, arguably supports proceeding with DACA requests, assuming appropriate analysis, even in the face of ongoing legal and political challenges.
In addition to appreciating the risks attendant to possible termination of DACA, the entirety of the requestor’s immigration and criminal histories must be carefully examined for additional risks they might reveal. Even if no DACA-disqualifying factors are revealed, certain events may trigger immigration consequences if other relief is applied for, if the immigration laws change, or if DACA is terminated. It may also be the case that a request might reveal negative factors pertaining to undocumented family members.
It is essential that a thorough risk assessment for both the requestor and family members be completed and that the requestor be positioned to provide informed consent to proceeding with the DACA request and any attendant risks. It can be a significant challenge to comply with DACA requirements while avoiding unnecessary risk. DHS assures requestors that there are limits on the extent of and purpose for agency sharing of information derived from the filing of a DACA request. It is possible, however, particularly if the initial analysis of the case is incomplete, that a person filing for DACA could, instead of obtaining a grant, be placed in removal proceedings, and/or put family members at risk. Furthermore, requestors need to understand that any knowing misrepresentations will result in the requestor no longer being a low-enforcement priority but instead becoming a high-enforcement priority. It will never be the case that a DACA request is risk free; at a minimum, there is the certain risk of documenting oneself as undocumented.
Collecting and assembling supporting evidence. In addition to being a stand-alone risk, documenting an undocumented existence in the form of a government file can produce multiple other risks. This stage of the DACA process can be as complex as the initial case analysis and engages many of the same considerations involved during pretrial discovery. After the initial intake and consultation process, the requestor will likely spend weeks gathering the necessary supporting documentation. Establishing a child’s unlawful entry into the United States prior to the age of 16, establishing an undocumented child’s continuous presence in the United States for the past five years, and, particularly, establishing presence on June 15, 2012 (a date when most schools were out of session for summer break), is not necessarily a simple feat. Children of migrant workers face special challenges in gathering documentation. Affidavits are acceptable to satisfy only certain of the DACA criteria. Additionally, each document must be reviewed to determine what information it contains in addition to that required to satisfy DACA guidelines. Not only criminal and immigration records, but all records, including school and medical, must be reviewed not only for contents that pertain to possible disqualification from DACA, but also, even if not disqualifying for DACA, for contents that could portend other immigration consequences.
Sometimes documents are presented in highly organized files, sometimes in shoeboxes, and sometimes all that is available can fit in a letter-sized envelope. Counsel will then spend a significant amount of time reviewing and assessing the supporting evidence, suggesting pursuit of additional evidence, and ensuring a complete understanding of the contents of all the evidence and implications of risk.
Indexing of the documents for submission and articulating how they support the eligibility criteria follows. Compilation of documentation evidencing satisfaction of DACA eligibility guidelines requires a great deal effort by the requestor and significant review, organization, and analysis by the attorney. The younger the requestor, the simpler it would seem to be to fit the eligibility requirements. Ironically, the younger the requestor, or the longer the requestor has been out of school, the more difficult it actually can be to garner the necessary documentation.
DACA is not only a deferral of deportation as well as a deferral of dreams; it is the documenting of the undocumented, the identifying and defining of hundreds of thousands of children and young adults as Americans in every way except on paper. And it is that last feature that makes DACA work a compelling provision of professional and public service.