Statistics show that approximately 1.76 million young undocumented immigrants were brought to the United States as children.1 Many of them are unaware of their immigration status until they reach their late teens, when ordinary things their peers do, such as taking a flight to another state for a school-sponsored event or registering for driver’s education, become problematic. For many of these teens who learn about their undocumented status, sometimes just a few months shy of their 18th birthday, the sudden realization can be one of the most traumatic events of their young lives, causing them to drop out of the school and descend into a path of poverty.
What Does DACA Stand For? On June 15, 2012, the U.S. Department of Homeland Security Secretary announced in a memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) that certain individuals who came to the United States as children may qualify for “deferred action for childhood arrivals” (DACA) for a twoyear period and seek employment authorization, creating some hope for many of the undocumented young adults.2
Illinois attorneys consulting undocumented clients should strongly consider advising their clients to apply for DACA. DACA enables individuals to live and work in the United States free of fear of removal for a period of two years.
It is important, however, to note that DACA is not a grant of a legal status or any type of amnesty. DACA will not lead to a grant of permanent residency or citizenship and it may be rescinded at any point of time.3 Provided that Congress addresses comprehensive immigration reform, individuals holding a DACA grant would in all likelihood be considered the first priority.
Prosecutorial discretion actions such as DACA have been at the core of the immigration law system for many decades. In Arizona v. United States, the Court emphasized the importance of exercising discretion in the immigration system.4
Who Are the “Dreamers”. For more than two years, the USCIS has kept track of the applicants filing for DACA petitions, which has allowed us to learn more about the individuals this program supports. Majority of the applicants come from Mexico followed by El Salvador, Honduras, Guatemala and South Korea.5 The Chicago Metropolitan area ranks fifth in terms of the number of DACA requests accepted nationwide while Los Angeles takes the lead.6 Majority of the young applicants are under 24 years of age.7
Who Can Benefit. In order to obtain a DACA grant the applicants must meet the following criteria:
1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching their 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.8
Even though a DACA grant can normalize the life of a young undocumented individual, making a DACA request carries a number of risks that need to be assessed.
First and foremost, an applicant’s criminal history should be carefully evaluated, keeping in mind that the definition of a conviction for the purposes of immigration law has been construed rather broadly.9
On August 3, 2012, USCIS issued supplemental FAQs shedding more light on the disqualifying factors that each attorney advising a potential DACA applicant needs to consider.10 Attorneys should take a detailed intake pertaining to the client’s criminal history and secure copies of all police reports and records of disposition of any criminal convictions including juvenile adjudications regardless of how minor the charge may seem or how long ago the event in question took place.
A felony conviction renders an applicant inadmissible for DACA.11 The federal criminal classification is employed when making the determination whether an offense is categorized as a felony or a misdemeanor. A felony, generally speaking, is an offense punishable by a potential sentence of more than one year regardless of how a state would categorize the offense.12
Individuals are also not eligible for DACA if they have been convicted of a significant misdemeanor; this term has not been defined in the Immigration and Nationality Act or any other parts of the U.S. Code.13 The FAQs explain that a “significant misdemeanor” could be regarded as:
1. regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.14
Individuals convicted of three or more non-significant misdemeanors not occurring on the same date and not arising out of the same action, omission or scheme are not eligible for DACA.15 An open ended question remains as to whether a criminal violation of federal immigration law would disqualify a potential applicant. Minor traffic tickets, including driving without a valid license would not be counted toward the non-significant misdemeanor violations.
In addition to criminal history, applicants should also be screened for gang affiliations as gang membership is a disqualifying factor under the threat to public safety or national security criteria.
Expanded DACA. On November 20, 2014, President Obama announced substantial changes to the currently existing DACA program. 16 The changes are expected to take effect in late February 2015 The current cutoff date (the date before which the applicants had to enter Untied States) of June 15, 2007 will be substituted with January 1, 2010. The upper age limit requirement will be eliminated, and the DACA will be granted for three instead of two years.
How Do I Prove My Case. Evidence presented should document previously outlined eligibility criteria. The applicant must provide documentation of his/her identify, immigration status and physical presence. Primary evidence17 of identity includes a certified copy of a birth certificate or copy of the biographical passport page (the one bearing the applicant’s photograph) or a copy of a national identification document. To determine what is likely to be accepted as primary evidence by USCIS, you can look to the U.S. Department of State (“USDOS”) Reciprocity by Country table.18 If primary evidence is not obtainable, you may have to rely on secondary evidence.
Reliance on secondary evidence is not encouraged. First of all, secondary evidence must overcome the unavailability of primary evidence, and if you were to rely upon affidavits, the affidavits must overcome the unavailability of primary and secondary evidence.19 Secondary evidence would be documents not listed in the Reciprocity table (the table also provides information about countries that do not make available certain types of primary evidence, lowering the burden for submitting secondary evidence by establishing unavailability of the primary evidence), such as religious institution records. Affidavits would be sworn, written statements,20 and may be of bystanders of the birth. Since deferred action is only available to childhood arrivals that came into the U.S. without inspection or those that overstayed their visa,21 it may be very important to document the applicant’s immigration status. This is easier in cases where the applicant entered without inspection, as his/her statement to that effect should be sufficient. After all, entry without documentation can hardly be documented.
On the other hand, entry on a visa that later expired should be documented at all cost. DACA does not confer any status on the applicant.22 The applicant that came into the U.S. with inspection (on a visa), and never overstayed his/her authorized period of stay under that visa for over six (6) months as an adult, may still be eligible to obtain permanent residence (green card) through adjustment of status because s/he has not accrued unlawful presence.23 One example is the applicant who entered on a tourist visa at the age of 6 years, and filed for DACA at the age of 17.5 years. Had the DACA approved, the applicant could adjust his/her status to a permanent resident not only based on marriage to a U.S. citizen (exception to unlawful presence), but pursuant to any other means, including an employment based petition.24
On the other hand, an entrant without inspection can never adjust his/her status to a permanent resident, without obtaining a waiver of inadmissibility, which is a very difficult process and requires traveling back to the country of origin (although, those that obtain and use advance parole to re-enter the U.S., may be eligible to adjust nonetheless).25
Primary evidence of immigration status includes the I-94 card present in the passport of the applicant (front and back), which usually has the date and class of admission and a passport bearing an admission stamp.
The problem arises when this documentation cannot be found. Many countries have included and some still continue to include minor children on their parents’ passports, and these are often lost.
A Freedom of Information Act Request (“FOIA”) can be made to the CBP, but records of minors entering the U.S. were not well kept until a few years ago. Although secondary evidence and affidavits may be used, it is discouraged.
To qualify, the applicant must be able to prove that he/she entered before his/her 16th birthday; entered or had his/her immigration status expire on or before June 15, 2012; he/she was present in the U.S. on June 15, 2012; continuously resided in the U.S. since June 15, 2007; and was under the age of 31 on June 15, 2012. The last point can be proven with a birth certificate. Arrival before the 16th birthday and arrival on or before June 15, 2012, can be demonstrated by the I-94 card and passport stamps. Short of that, records from around the time of entry can be used as secondary evidence. These include: financial records, medical records, school records, court records, applications for immigration benefits, correspondence from official sources. Presence in the U.S on June 15, 2012, can be demonstrated using same records bearing that date, or including that date, for instance, academic records and records of attendance at school or other program.
Continuous presence can be documented by the same records dating from June 15, 2007, until the present.
In addition, other records showing continuous presence include: driver’s license, birth certificates of children born in the U.S., marriage certificates, utility bills, tax returns, rent receipts, other dated receipts, bank statements, personal checks bearing dated bank cancellation stamp, employment records, military records, and credit card statements.
Application Process. The initial application for DACA requires form I-821D26, Consideration of Deferred Action for Childhood Arrivals, which is the main application form. Form I-765, Application for Employment Authorization, and the I-765 Worksheet27 are required to establish the need to work. Payment includes the $465 fee for the I-765 form and fingerprint fees. The application process requires documentation described above and supporting answers to all questions in the Evidence section above; and two (2) passport-style photographs of the applicant. A prospective applicant who has been detained ICE or CBP, is to be screened and released if s/he is prima facie eligible for DACA. Such released individuals would be eligible to use the same application process as described above.
For some individuals in removal proceedings (ones already served with a Notice to Appear (“NTA”) for removal28), ICE will move to grant deferred action without action on the applicant’s part. An applicant in removal proceedings, can contact ICE for a determination of a prima facie case for DACA at 855-448-6903.
For others, which would include those with final orders of removal, the process is different.
To request DACA, an applicant must be at least 15 years old and at least 31 years old as of June 15, 2012. However, there is no minimum age for an applicant in removal29. Proof of immigration status for an applicant in removal would include a final order of exclusion, deportation or removal issued as of June 15, 2012, or a charging document (NTA) placing the applicant in removal proceedings.
Another difference is that brief, casual and innocent travel outside of the U.S. on or after June 15, 2007, but before August 15, 2012, does not affect continuous presence (necessary to qualify for DACA), but leaving the U.S. because of an order of exclusion, deportation or removal during said timeframe, does affect continuous presence.
An applicant for renewal of DACA must have continued his/her continuous residence in the U.S. since the initial application, not have departed the U.S. at all since August 15, 2012, except with advance parole (this is a separate application), and not have been convicted of a felony, significant misdemeanor, or three or more misdemeanors. The application should be filed between four and five months (but not earlier) before the current deferred action expires. The forms and fees are the same as the initial application, but no documentation needs to be submitted unless applicant has new documents involving removal or criminal history.
If the renewal is not approved by the date of expiration of the initial grant, the applicant will accrue unlawful presence for the time between expiration and renewal (unless the applicant was under 18 years of age when he/she submitted the renewal application). USCIS has stated it will endeavor to grant deferred action until it makes a decision on the renewal application if it was submitted at least 120 days before the initial grant expires.
USCIS has created a helpful site for initial and renewal applicants at www.uscis.gov/childhoodarrivals.
Why Should I Advise My Clients to Apply for DACA. Again, DACA is not a status but a deferral of action by the U.S. government for the approved applicant.
While approval does not mean that the successful applicant is in a recognizable immigration status, he/she is now “documented,” which offers many benefits. Assuming (as is typically the case) that the approval is accompanied by approval of work authorization, the applicant can now obtain a social security card with a number (“SSN”) valid for employment. The SSN of course means the ability to deposit into the social security system for retirement, build a financial history useful for obtaining credit, rental applications and the like. And in many cases, it allows the applicant to obtain a refund of withheld taxes. DACA and the SSN allows the applicant to open bank and credit card accounts, building up a credit history, as well as financial aid and certain loans for education and business purposes. With the SSN, the applicant can apply for a driver’s license.
The driver’s license provides mobility and thus, opportunity. This, combined with the confidence of being documented means that the applicant may travel farther for work. For travel outside of the U.S., the applicant is now eligible for advance parole (filed on form I-131), though this will only be granted for humanitarian, educational or employment purposes (Depending on the circumstances, travel even on advance parole may carry other consequences, discussion of which is beyond the scope of this article).
1 Batalova, Jeanne and Michelle Mittestad, Relief from Deportation: Demographic Profile of DREAMers Potentially Eligible Under the Deferred Action Policy Washington, DC: Migration Policy Institute, 2012, Web.
2 http://www.dhs.gov/xlibrar y/assets/s1-exercisingprosecutorial-discretion-individuals-who-came-to-us-aschildren.pdf
4 Arizona v. United States, 132 S. Ct. 2492, at 2499, (2012).
5 Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA); Table 3.
6 Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA); Table 4.
7 Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA); Table 1 and 2.
9 NA 101(a)(48)(A)
11 http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-askedquestions#criminal convictions
12 1 Wayne R. LaFave et al., Criminal Procedure: A Treatise § 1.8(b) (3d ed. 2007)
14 http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-askedquestions#criminal convictions
17 Primary and secondary evidence. Adjudicator’s Field Manual, 11.1(f) (2014).
18 http://travel.state.gov/content/visas/english/fees/reciprocityby-country.html (Choose country, then hit “Jump to CountyDocuments” link).
19 8 CFR Sec. 103.2 (http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/8cfr.html)
20 735 ILCS 5/1-109 (2014).
21 U.S. Department of Homeland Security Memorandum from Janet Napolitano, June 15, 2012, on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (hereinafter referred to as the “Napolitano Memorandum”.
22 Napolitano Memorandum.
23 NA Sec. 245(c)(2)
24 NA Sec. 212(a)(9)(B)(iii)(I) (2014).
25 NA Sec. 212(a)(6).
26 Each reference to a “form” is to a U.S. Citizenship and Immigration Services form available at http://www.uscis.gov/forms
27 Also referred to as, “I-765WS” and available at http://www.uscis.gov/sites/default/files/files/form/i-765ws.pdf
28 Formerly referred to as “deportation”.
29 References to an applicant in “removal”, include an applicant that has a final removal order, or a voluntary departure order, and is not in immigration detention.
Thomas P. Miller Principal of the Law Offices of Thomas P. Miller, P.C., Tom has practiced family law and immigration law in DuPage since 2001. Tom has a law degree from DePaul University and BS degree, double-major in psychology and political science from the University of Illinois at Urbana-Champaign. Tom is fluent in Polish and conversational in Spanish.
Edyta Salata graduated from University of Illinois College of Law where she was an editor for the Comparative Labor Law Journal. Ms. Salata’s focused her private practice in the area of immigration law. She was selected for inclusion to Illinois Super Lawyers Rising Star from 2008 through 2013 and was awarded Martindale-Hubbell’s AV Rating in 2011.