Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, the Department of Homeland Security (DHS) issued a memorandum announcing that prosecutorial discretion should be applied to certain individuals who came to the United States as children. It explains that young noncitizens who do not present a risk to national security or public safety and meet specified criteria may receive deferred action for two years, subject to renewal, and may apply for work authorization.
USCIS has issued FAQs providing more details about the eligibility criteria and request process for DACA, as well as a form and instructions. The DACA policy does not supersede ICE’s previously issued prosecutorial discretion guidance outlined in the June 17, 2011 Morton memo. Those in removal proceedings who do not meet the eligibility criteria under DACA may still be eligible for prosecutorial discretion based on the prior guidance.
The LAC, the National Immigration Project (NIP), and the American Immigration Lawyers Association (AILA) have issued a practice advisory, “Deferred Action for Childhood Arrivals,” that summarizes agency guidance regarding DACA and answers some commonly asked questions about the program. The LAC also continues to play a leading role in advocacy efforts to ensure that the administration is fairly and consistently implementing DACA.
IPC Resource Page: Deferred Action for Childhood Arrivals. This page provides links to DACA-related blog posts, information about the DREAM Act and other resources.
LAC, NIP and AILA Practice Advisory, Deferred Action for Childhood Arrivals (updated July 25, 2013). This comprehensive practice advisory on DACA includes DHS guidance regarding fraudulent Social Security numbers, required evidence, and travel considerations for DACA requesters. It also offers strategic advice for attorneys representing individuals who may qualify for DACA.
LAC and CLINIC Practice Advisory, Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients (August 28, 2013). DACA recipients may seek permission – through a process known as “advance parole” – to travel abroad temporarily for humanitarian, educational, or employment purposes. This practice advisory provides guidance on advance parole eligibility for DACA recipients; outlines how a DACA recipient may apply for advance parole; addresses the legal issues that can confront a DACA recipient considering travel on advance parole, including any potential risks; and finally, covers the impact that the travel may have on the DACA recipient’s future immigration benefits.
LAC Practice Advisory, “Brief, Casual and Innocent” Absences from the United States (January 29, 2013). DACA applicants must demonstrate that they have continuously resided in the United States from June 15, 2007, unless any absence was “brief, casual and innocent.” This practice advisory discusses the “brief, casual and innocent” standard under existing case law.
LAC Practice Advisory, Inspection and Entry at a Port of Entry: When is There an Admission? (January 29, 2013). This practice advisory discusses entries in three common situations: where a noncitizen is “waved” through a port of entry with no questions asked; where entry is gained by fraud or misrepresentation; and where there is a false claim to U.S. citizenship. With respect to each situation, the practice advisory explores whether an “admission” has occurred, the individual’s immigration status upon entry, and the immigration consequences of the action. It also discusses the impact of these three types of entries on a DACA application.
AIC & AILA Response to the Department of Homeland Security’s notice of revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and accompanying instructions, 78 FR 76636 (Dec. 18, 2013) (submitted Feb. 18, 2014). The American Immigration Council and the American Immigration Lawyers Association submitted suggestions to USCIS regarding the effective implementation of the renewal process.
AIC, AILA & Other Stakeholders’ Response to the Department of Homeland Security’s notice of revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and accompanying instructions, 78 FR 76636 (Dec. 18, 2013) (submitted Feb. 18, 2014). The American Immigration Council along with the American Immigration Lawyers Association, the Immigrant Legal Resource Center, the National Immigration Project of the National Lawyers Guild, Educators For Fair Consideration, the National Immigration Law Center, United We Dream, and the Catholic Legal Immigration Network, Inc. offered comments in response to DHS’s proposed new DACA application form and instructions.
Letter Requesting Modifications to USCIS DACA FAQ (submitted June 3, 2013). The American Immigration Council along with American Immigration Lawyers Association, Immigrant Legal Resource Center, National Council of La Raza, National Immigration Project of the National Lawyers Guild, and United We Dream, submitted proposals to USCIS seeking certain modifications to the DACA Frequently Asked Questions page.
Second Letter Requesting Modifications to USCIS DACA FAQ (submitted April 8, 2014). The American Immigration Council along with American Immigration Lawyers Association, Immigrant Legal Resource Center, Mexican American Legal Defense and Educational Fund, National Immigration Law Center, National Immigration Project of the National Lawyers Guild, New York Immigration Coalition, and United We Dream, submitted proposals to USCIS seeking certain modifications to the DACA Frequently Asked Questions page.
Response to the Department of Homeland Security's notice of revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and accompanying instructions, 77 FR 74488 (Dec. 14, 2012) (submitted Feb. 12, 2013). The American Immigration Council, the American Immigration Lawyers Association, the Catholic Legal Immigration Network, Inc., and the National Immigration Law Center welcomed changes made by USCIS, but encouraged several additional changes to Form I-821D and the accompanying instructions to make it more understandable and accessible to DACA requesters, particularly those requesters who are unrepresented.
Response to the Department of Homeland Security’s notice of revisions to Form I‐131, Application for Travel Document and accompanying instructions, OMB Control Number 1615‐0013, 77 Fed. Reg. 71432 (Nov. 30, 2012) (submitted Dec. 31, 2012). The American Immigration Council, the American Immigration Lawyers Association and the Catholic Legal Immigration Network, Inc. jointly submitted comments addressing numerous aspects of the Form I-131 instructions including revisions to the instructions that provide guidance to DACA recipients on their eligibility for Advance Parole.
What the DACA Renewal Process Should Look Like - February 21, 2014
Understanding DACA's Education Requirement - November 18, 2013
Are You Really Too Old for DACA? - October 24, 2013
Questions About Traveling Abroad Confront DACA Recipients – September 16, 2013
Anti-DACA Lawsuit Dismissed! — July 31, 2013
Happy Birthday DACA! — June 17, 2013
Why Are Some Still UnDACAmented? — April 12, 2013
To read more DACA-related blogs at Immigration Impact, click here.
Crane v. Napolitano (Lawsuit challenging legality of DACA, dismissed on July 31, 2013)
- Anti-DACA Lawsuit Dismissed! — July 31, 2013
- Federal Judge Leaves Anti-DACA Lawsuit Hanging By a Thread – Jan. 30, 2013
- Immigration Expert Exposes Legal Flaws in Anti-DACA Lawsuit – Jan. 7, 2013
- Why Kobach’s Lawsuit Against Deferred Action is Unlikely to Stand Up in Court – Aug. 24, 2012
Driver’s Licenses Cases
- Arizona: Arizona Dream Act Coalition, et al v. Brewer. The district court held that the plaintiffs were likely to establish that Arizona’s policy of denying driver’s licenses to DACA recipients violated the Equal Protection Clause, but denied the plaintiffs’ preliminary injunction motion for failure to establish irreparable injury. This ruling is pending before the Ninth Circuit Court of Appeals. Oral argument is slated for December 3, 2013.
- Nebraska: Hernandez, et al. v. Heineman. The ACLU of Nebraska filed this complaint in Nebraska state court on June 11, 2013.
Law Licenses for DACA recipients and the undocumented
- California: On October 5, 2013, Governor Jerry Brown signed AB 1024 into law. This legislation will allow the California State Bar to grant law licenses to undocumented immigrants who otherwise fulfill the requirements for admission.
- Immigration Impact blog, Why is the Obama Administration Arguing that Undocumented Immigrants Should Not Practice Law? (Sep. 4, 2013)
- Florida: Florida Board of Bar Examiners Re: Undocumented Immigrants
Center for American Progress, Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA (Sep. 20, 2013).
Immigration Policy Center, How DACA is Impacting the Lives of Those Who Are Now DACAmented (Aug. 15, 2013).
Brookings Institution, Immigration Facts: Deferred Action for Childhood Arrivals (DACA) (Aug. 14, 2013).
Migration Policy Institute, Deferred Action for Childhood Arrivals at the One-Year Mark: A Profile of Currently Eligible Youth and Applicants (Aug. 12, 2013).
Immigration Policy Center, Who and Where the DREAMers Are, Revised Estimates (Oct. 16, 2012).
Immigration Policy Center, Creating Opportunity: The Economic Benefits of Granting Deferred Action to Unauthorized Immigrants Brought to the United States as Children (June 22, 2012).
Memorandum from Janet Napolitano, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).
USCIS, Consideration of Deferred Action for Childhood Arrivals Process. This webpage provides an overview of DACA, including the filing process, and provides links to required forms, the most recent FAQs and other resources.
USCIS, Data on DACA Applications. This webpage provides monthly reports related to DACA application rates.
DACA Standard Operating Procedures version 2.0 (4-4-13). This manual was provided to AIC and NILC in response to a FOIA request.
DACA Standard Operating Procedures version 1.0 (9-13-12) (with training module). These materials were provided to Penn State’s Center for Immigrants Rights in response to a FOIA request.
Memorandum from John Morton, Director of ICE, Re: Secretary Napolitano’s Memorandum Concerning the Exercise of Prosecutorial Discretion for Certain Removable Individuals Who Entered the United States as a Child (June 15, 2012).
The American Immigration Council, along with the American Immigration Lawyers Association, the Immigration Advocates Network, and the Own the Dream campaign, launched "Pocket DACA," a smartphone application to help people understand the DACA process, including a self-administered eligibility test and a searchable directory of immigration legal services providers. Read the press release or watch this video to learn more.
The American Immigration Council, in conjunction with the Own the DREAM campaign, the Immigration Advocates Network, and the Catholic Legal Immigration Network, presented DACA 101 for Legal Service Providers, a free webinar designed to provide a basic overview of DACA representation. This webinar was recorded on May 15, 2013.
The American Immigration Council, in conjunction with the Own the DREAM campaign and the Immigration Advocates Network, presented Representing a DACA Applicant with an Entry/Exit History, a free informative webcast for legal service providers. This webinar was recorded on October 10, 2013.
The American Immigration Council: DREAMers, DACA, and the Senate Bill. This fact sheet explores the relationship between DACA and the DREAM Act provisions of S.744. It notes that S.744 authorizes the DHS Secretary to render the legalization process more streamlined and less costly for DACA recipients as compared to other legalization applicants. It also highlights the differing eligibility requirements for DACA and legalization for DREAMers under S.744.
Legal Action Center, Our Litigation and Advocacy Page: Prosecutorial Discretion. This page provides an overview of developments regarding prosecutorial discretion, including cases, LAC’s administrative advocacy efforts and relevant LAC practice advisories.
National Immigration Law Center, Deferred Action for DREAMers Resource Page. NILC’s webpage includes information on DACA and driver’s licenses, DACA and health care benefits, and DACA and workplace rights.
Own the DREAM. Own the DREAM is a national campaign to help aspiring Americans brought to this country as children to apply for DACA and work permits. The campaign joins the resources of United We Dream and its partners. The webpage provides, among other resources, a screening tool, that allows potential DACA requesters to determine if they are eligible for DACA.
Catholic Legal Immigration Network, Inc., Toolkit for Deferred Action for Childhood Arrivals (DACA) Workshops. This toolkit is intended to help charitable immigration programs and volunteers develop DACA workshops. It includes forms and sample documents that can be used or adapted.
Northwest Immigrant Rights Project, DREAMer Resources.
National Immigrant Justice Center, DREAMer Resource Hub.
Educators For Fair Consideration and Curran & Berger, Got DACA, Now What? What to Know When Your Deferred Action for Childhood Arrivals Request is Approved.
Social Security Administration, Social Security Numbers for DACA Recipients.
Labor Council for Latin American Advancement, Life After DACA: Obtaining a Social Security Number, Transferring Your Credit History, and Rescinding your ITIN.