Using executive powers to stop removal (deportation) of young persons who are illegally present in the U.S.,
but who are assimilated through education or military service, on June 15, 2012, then Homeland Secretary Janet Napolitano issued a memorandum providing
for Deferred Action for Childhood Arrivals (DACA) who are in removal, subject
to removal, or identified as undocumented, provided they meet the following
- came to the United States before the age of sixteen (15 and below);
- except for brief departures for humanitarian reasons, have continuously
resided in the United States for a least five years preceding June 15, 2012
and were physically present in the United States June 15, 2012;
- are currently in school (including qualified programs for GED), graduated from high school or obtained a GED,
or were honorably discharged from the Coast Guard or U.S. Armed Forces;
- were not convicted of a felony, a significant misdemeanor (including DUI),
multiple misdemeanor offenses, or otherwise pose a threat to national security
or public safety; and
- were not over the age of thirty-one on June 15, 2012.
- Were out of status on June 15, 2012, either by virtue of overstaying a visa,
illegal entry, or termination of status by operation of law.
Eligible individuals, regardless of being under the age of 15, who are already
in removal proceedings that have not culminated in a final order of removal
(deportation) are to be given deferred action for a period of two years, which
is renewable indefinitely. The ICE Office of Public Advocate is the entity to
whom persons who believe they qualify can direct inquiries.
Qualified persons whose cases resulted in final orders of removal (deportation)
of any age or who were never placed in removal and are at least 15 years old
can apply to USCIS for a two year deferred action determination, subject to
USCIS began accepting applications on August 15, 2012. Three official forms
must be submitted, one for deferred action (form I-821d), another for work authorization
(form I-765), and a third worksheet to establish economic need for employment
(form I-765ws). Documents to establish physical presence, schooling or military
record, identity, and age are required to be submitted. Applications must be
accompanied by the required $465 fee, which is non-refundable. No fee waiver
is possible but some rare cases of fee exemption may be granted. A criminal
record will disqualify persons under certain circumstances. No appeal is possible.
Refilings of denied applications are discouraged. A motion to reopen will be entertained in
egregiously wrongly decided cases.
If an application is successful, advance parole to travel outside the country
may be possible. A form I-131 is used to request it, but it cannot be submitted
before the I-821d is approved, without jeopardizing the entire process.
One potentially troublesome area in administering the policy involves prior
trouble with the law. Traditional immigration rules applicable to other criminal
cases will not necessary apply to determinations made for deferred action. Thus,
a single prior DUI conviction, which ordinarily has little relevance in other
immigration proceedings, will disqualify an applicant who is otherwise eligible
under DACA. Prior juvenile delinquency dispositions will generally not be taken
into account. The same is true of expunged crimes. On the other hand, a misdemeanor
conviction for illegal possession of marijuana will not necessarily preclude DACA.
No amnesty, path to permanent residency, citizenship, or other immigration
benefit is authorized. No benefit is conferred on family members by virtue of
Arizona has stated it will not issue driver's licenses to persons granted DACA benefits on the theory that
the DACA documents do not confer lawful presence upon them, but at least one community college in Arizona has stated
that it will give in-state tuition benefits to DACA recipients because the DACA EAD is a document recognized for that
purpose under both state and federal law. A lawsuit against the State is expected to contest the driver's license policy.
An ideal DACA candidate has no criminal record, is about to or just graduated high school, never worked unlawfully, and
is under 18.5 years of age.
Young people who were ever the subject of a police investigation, used
a false social security card, falsely claimed to be a citizen, or left the country
during the five year qualifying period are strongly advised to consult with
a qualified immigration lawyer before filing papers for deferred action, as
the process may not be appropriate for them. Although USCIS has stated it will not consider
prior use of false social security cards in the DACA process, successful DACA applicants have reported
inquiries from social security about the use of false numbers previously when they apply for social security
cards after employment authorization has issued.
Being enrolled in certain GED programs will qualify as being currently enrolled in school and thus can support an application for DACA benefits but in Arizona,
one must have a state issued ID to enroll for a GED under state programs, which is unavailable generally to undocumented persons, so consultation with knowledgeable
individuals is recommended.
Driver Licenses and Community College Tuition
Attorney John Messing's interview on September 24, 2012 by KGUN TV 9 On Your Side about driver licenses for DACA recipients
Following the television interview, the American Civil Liberties Union did sue, on behalf of DACA recipients, the state authorities of Arizona and Michigan to obtain court orders obliging them to provide driver licenses to DACA recipients. (On February 1, 2013, Michigan followed a number of other states and removed the prohibition against issuing state driver
licenses to DACA recipients.)
Although as noted in the above television interview, initially DACA recipients were said not to be in lawful status, as of January 18, 2013, the United States Citizenship and Immigration Services (USCIS) clarified that an "individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present
in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect." This announcement was intended to put to rest the argument by some anti-immigrant state authorities that
DACA credentials could not be used to obtain a driver license or in-state tuition at the post-secondary level, as John Messing stated in the television interview.
Based upon this announcement a number of states reversed policy and began issuing driver licenses to DACA recipients. According to the National Immigration
Law Center, Arizona and Nebraska as of February 15, 2013 were primarily the only states that still denied driver licenses to DACA grantees.
In-state tuition often is available to DACA recipients who otherwise qualify, but in Arizona, the Board of Regents still does not recognize DACA as a basis for in-state tuition, though the Maricopa Community Colleges do, and other
community colleges such as Pima Community College are considering granting in-state tuition to DACA recipients.
If you want experienced legal advice about the new policy and eligibility under
it, contact Messing Law Offices for professional Arizona
immigration attorney assistance. Please call (520) 512-5400 for further information about DACA.
Failed Prior Dreamer Legislation in Congress
With the re-election of President Obama in 2012, Comprehensive Immigration Reform (CIR) has again become a hot political topic. Some initiatives in Congress to provide legislation for dreamers have been proposed, but they generally have taken
a back seat to CIR. The last serious attempt to legislate dream act relief was in 2010, and the DACA program through the executive branch follows failed immigration reform legislation
for DREAMERs. The DREAM (Development Relief and Education of Alien Minors) Act
was a proposed bill that failed to pass Congress in December, 2010. It was defeated
on a procedural vote of 55-41 in the Senate on December 18, 2010. Sixty votes
were needed to move the bill forward towards final approval.
The DREAM Act was proposal to allow undocumented young people who have been
raised and schooled in the U.S. to obtain permanent residency and a path to
citizenship. Perhaps the most eloquent example of the purpose and need for the
legislation was the 2005
underwater robotic championship won by a group undocumented Phoenix high
school students who competed against and defeated a prestigious MIT team in
a typically American tale of a spunky challenger who seizes an opportunity and
achieves a seemingly unobtainable goal.
The House on December 8, 2010 by a vote of 216 to 198 passed a version of the
law as an amendment to H.R. 5281. The provisions were set forth independently
as legislation in H.R.
6497. (It was also known as the Removal Clarification Act of 2010.) On the
night of December 16, Senate Majority Leader Reid filed cloture on H.R. 5281,
setting up a critical procedural vote in the Senate. The purpose of the vote
was to force the end of a filibuster in the Senate against DREAM. Three Republicans
crossed the aisle to join 50 Democrats and 2 Independents, but it was not enough.
5 Democrats actually voted against DREAM: Baucus (MT); Hagan (NC); Nelson (NE);
Pryor (AR); and Tester (MT). Newly elected Joe Manchin (WV) failed to appear
for the vote, which was equivalent to a "no" note. The five Democratic
votes were decisive in defeating DREAM.
Prior to the June 15, 2012 announcement, the Obama Administration reaffirmed
a policy of prosecutorial discretion in July 2011. In two memos, Immigration
and Customs Enforcement (ICE) Director Morton announced a directive to refrain
from pursuing noncitizens with close family, educational, military, or other
ties in the U.S. and instead spend the agency’s limited resources on persons
who pose a serious threat to public safety or national security. Morton issued
a second memo that applied an exercise of discretion to cases involving victims,
witnesses to crimes, and plaintiffs in good faith civil rights lawsuits. The
memo instructs “[a]bsent special circumstances or aggravating factors,
it is against ICE policy to initiate removal proceedings against an individual
known to be the immediate victim or witness to a crime.”
Dissatisfaction with the pace of implenting these directives led to protests
by intended DREAM beneficiaries, and unrest. The June 15, 2012 memorandum addressed
implementation as regards DREAMERs directly.
Alternatives to DACA
Some alternatives to DACA should be considered in addition to the relief that
it offers. Such advice is routinely given during our initial consultation, which
can take place in person in the office, or where this is not practical via the
Internet using Skype or telephone.
First, a determination should be made whether an undocumented person in the
country really did enter illegally (as believed) or was actually waved through
by mistake at a border checkpoint by an immigration inspector. If there is documentary
proof of a faulty inspection procedure, then the person may actually have a
valid claim to have entered the United States legally and be able to benefit
from other provisions of existing law to obtain permanent residency through
non-Dream adjustment of status
Second, if a person was the beneficiary of a petition for adjustment
of status that was filed prior to April 30, 2001 and it was prima facie
approvable by the immigration authorities (even if it never was approved), then,
upon payment of a fine of one thousand dollars in addition processing fees,
the filing date of that earlier petition may be used for a new, independent
petition under section 245(i) of the INA, which may yield permanent residency
apart from the provisions of the Dream Act and notwithstanding an illegal entry
to the United States initially.
Third, if the person has been present for a long time and not run afoul of
the law, it may be possible to obtain a favorable exercise of prosecutorial
discretion, apart from DREAM.
Fourth, if a person requires a waiver and is concerned about travelling back to the country of origin to seek one, the provisional waiver program may offer relief
Some of the features of the new DACA policy are more stringent than traditional
classical forms of immigration relief, which may be superior as a way to obtain
employment authorization and status.
If you have questions about deferred action as opposed to other forms of available
relief, such as amnesty under section 245(i), or prosecutorial discretion, please
contact Messing Law Offices.
At Messing Law Offices, we provide high quality legal services and expertise
to families, working men and women, and businesses. If you have a concern in
the areas of family based immigration,
business based immigration, employment based immigration,
or naturalization and you are seeking the help
of an experienced immigration lawyer, call Messing Law
Offices for professional Arizona immigration attorney assistance.