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Deferred Action for Childhood Arrivals
Vanessa Esparza-López
November 06, 2013
www.immigrantjustice.org
About the
National Immigrant Justice Center
• The National Immigrant Justice Center (NIJC), a program of Heartland Alliance, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation and public education.
• NIJC is a Board of Immigration Appeals (BIA) recognized legal organization based in Chicago with more than 40 staff that includes attorneys, BIA accredited representatives and other professional legal staff.
• NIJC serves more than10,000 immigrants annually with the support of a professional legal staff and a network of over 1,500 pro bono attorneys.
• On June 15, 2012, the Obama administration
announced that certain young immigrants who
were brought to this country as children and
educated in the United States should not be
deported, but instead granted temporary status
and work authorization.
• Estimates for potentially eligible youth:
– ~ 1.5 million youth nationally
– ~ 75,000 in Illinois
Background
Updates on DACA processing
• More than 567,000 DACA applications have been filed
• More than 455,000 have been approved
• Less than 10,000 have been denied
Review of Basic
Eligibility Requirements • Arrived in the United States before the age of sixteen;
• At least 15 years old at the time of filing for DACA (if currently
in removal proceedings, may apply before 15);
• Under the age of 31 on June 15, 2012;
• Physically present June 15, 2012;
• No lawful status on June 15, 2012;
• Continuous residence in the United States from June 15,
2007 to the time of filing;
• Currently enrolled in school or in GED classes, graduated
from high school or obtained a GED certificate, or have
honorable discharge from the U.S. Coast Guard or Armed
Forces; and
• Have not been convicted of a felony offense, a significant
misdemeanor offense, multiple misdemeanor offenses, or
otherwise pose a threat to national security or public safety
• Eligible individuals will receive deferred action for a
period of two years, subject to renewal
• Individuals may be granted an employment
authorization document if demonstrate economic
necessity
• Obtaining an employment authorization document
qualifies an individual to obtain a social security
number and in most states, a driver’s license
• Does NOT qualify individuals to receive federal
financial aid for education (FAFSA)
What is the Benefit?
Deferred Action
• Discretionary determination to defer removal action
of an individual as an act of prosecutorial
discretion
• Does NOT confer lawful status
• If granted, the individual will not be considered to
be accruing unlawful presence
• Does not absolve individuals of any previous or
subsequent periods of unlawful presence
If otherwise eligible, may apply with U.S. Citizenship &
Immigration Services (USCIS) if:
• has never been in removal proceedings
• is currently in removal proceedings
• has a final order of removal*
• was granted voluntary departure*
• Currently individuals in immigration detention may
not apply with USCIS, but can apply with ICE
* May not be eligible if individual left the United States after
being ordered removed or granted voluntary departure after
June 2007 *
Current/Prior Removal Proceedings
Educational and Military
Requirements
On the date of filing:
• Must be enrolled in school or graduated from
high school
• Must have a GED certificate or be enrolled in
GED classes
OR
• Demonstrate honorable discharge from the
U.S. Coast Guard or Armed Forces
Legal Status Requirements
• May not have legal status on the date of filing
application; AND
• Did not have legal status on June 15, 2012
Example: A person with F-1, student status on June 15,
2012, if status expired after June 15th, is not eligible
for DACA.
• However … may apply for deferred action if an
application for asylum or cancellation of removal, or
similar relief, is pending before either USCIS or EOIR
as of June 15, 2012, but had no lawful status
Continuous Residence and
Departures from the United States • Certain departures from the United States will not interrupt
continuous residence if they were “brief, casual, and
innocent”
• A departure after June 15, 2007 will be considered “brief,
casual, and innocent,” if:
– The absence was short and reasonably calculated to
accomplish the purpose for the absence;
– The absence was not because of an order of exclusion,
deportation, or removal;
– 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
– The purpose of the absence and/or your actions while
outside the United States were not contrary to law.
Criminal Issues Not eligible if convicted of:
• Felony: punishable by imprisonment for a term exceeding one
year; or
• Significant misdemeanor: maximum term of imprisonment
authorized is one year or less but greater than five days and:
– domestic violence; sexual abuse or exploitation; burglary;
unlawful possession or use of a firearm; drug distribution
or trafficking; or, driving under the influence; or,
– An offense with a sentence to time in custody of more
than 90 days (not including suspended sentence); or
• Multiple misdemeanors: three or more misdemeanors not
occurring on the same date and not arising out of the same
act, omission, or scheme of misconduct
DHS retains the discretion to deny on the basis of any conviction
Other Criminal Factors
Expunged Convictions and Juvenile Offenses
• May not automatically disqualify
• Will be considered for discretion
• Juveniles convicted as adults, will be treated as adults
Traffic violations
• Driving without a license is a misdemeanor in Illinois.
However, USCIS has indicated that minor traffic offenses
(e.g. driving without a license) will not be considered a
misdemeanor for purposes of this process.
National Security Concerns/Public Threat
• May not be eligible if
– Currently in a gang
– Participates in criminal activities that threaten the
United States
Eligibility Requirements - What Must be Proven?
• Age
• Identity
• Educational or military requirement
• Continuous residence (June 15, 2007 - present)
• Physical presence in the U.S. on June 15, 2012
• If arrested, disposition of arrest
Affidavits Two or more affidavits sworn to by people other than applicant who
have direct personal knowledge may be used when there is:
• A gap in the documentation regarding evidence of five year
continuous residence requirement; or
• A shortcoming in documentation with respect to the brief,
casual and innocent departures
May not be used to show:
• Educational requirements;
• Military requirements;
• Physical presence in the United States on June 15, 2012;
• Entry to the United States prior to 16th birthday;
• Age requirements; and
• Criminal history
Application Process
• Cost = $465.00
• USCIS will issue receipt notices within 2-4 weeks of receiving
application packet
• USCIS will schedule applicant for biometrics appointment within
4-6 weeks
• Applicants’ names are checked against “name-check” databases
and criminal databases
• USCIS may issue request for evidence (“RFE”), if initial evidence
is deemed to be insufficient
• USCIS may request an interview in limited cases
• Average Processing Time ~ 6 months
Applicant may be eligible for a fee exemption if his/her income is less than 150% of
the U.S. poverty level and:
• he/she is under 18 years old and homeless, in foster care, or otherwise lacking
any familial support; or
• he/she cannot care for yourself because of a serious, chronic disability; or
• he/she, at the time of your application, accumulated $25,000 or more in
personal debt as a result of unreimbursed medical expenses for you or an
immediate family member. This debt must have been accumulated within the
past 12 months.
Fee exemption must be authorized by USCIS prior to filing DACA application
Fee Exemption Fee Exemption
Denied Applications • There is no appeal of a denial of DACA
• May result in the initiation of removal proceedings
– Information is protected from disclosure to ICE and
CBP for the purpose of immigration enforcement
(including for family members or guardians) unless
the applicant meets the criteria for the issuance of a
Notice To Appear
• Individuals in removal proceedings who believe their
cases were not correctly handled may contact the
ICE Office of the Public Advocate either
– by phone at 1-888-351-4024
– or by e-mail at [email protected]
Travel Outside the U.S.
Once DACA is approved, certain individuals may travel outside the United States with advance parole...
• For certain reasons, such as employment, humanitarian, and education
• Must apply for and obtain advance parole before departure
• Even if advance parole is granted, it may still not be advisable for the individual to travel outside of the United States
Renewal of Deferred Action
• May renew after two years (if this program still
exists)
• If an individual applies for and receives an
extension of the period for which he or she was
granted deferred action, he or she must also
request an extension of his or her employment
authorization
• Legislative debate suggests that if an immigration
reform bill passes, DACA applicants would have a
streamlined path to permanent legal status
Other Info…
These factors will not impact eligibility for DACA,
although they could be problems for the individual
when applying for other immigration remedies:
• Using a false social security or other name to work
• Claiming U.S. citizenship or LPR status
• Using different names on school or employment
records
• Certain criminal convictions
Eligibility for Other
Immigration Remedies
NIJC screens all potential DACA applicants for
eligibility for other immigration benefits
• Has been a victim of a violent crime
• Has a U.S. citizen or lawful permanent resident
spouse/partner, parent or child
• Has been in the U.S. for more than 10 years
• Is afraid to return to her/his country of
nationality because of her/his political opinion,
race, religion, nationality or membership in a
particular social group (including, gender or
sexual identity)
Resources
• www.uscis.gov – U.S. Citizenship & Immigration Services
(USCIS) – to obtain forms or information regarding deferred
action
• www.uscis.gov/childhoodarrivals - USCIS’ DACA FAQs – this is
the authoritative resource regarding eligibility
• www.immigrantjustice.org/dreamers - NIJC’s information page
regarding deferred action
• www.usdoj.gov/eoir - Executive Office for Immigration Review –
EOIR (immigration courts or Board of Immigration Appeals)
• 800-898-7180 – EOIR’s automated number at which you can
find out if applicant was previously ordered removed, granted
voluntary departure or is currently in removal proceedings.
Questions…
Vanessa Esparza-López,
Supervising Attorney
312.660.1607
National Immigrant Justice Center
208 S LaSalle St, Suite 1300
Chicago, IL 60604
www.immigrantjustice.org
Thank You Thank You!
