Sunday, November 30, 2014

Part of the Obama Plan: Expand Deferred Action for Childhood Arrivals (DACA) Program

As outlined in detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One of the immigration initiatives is "Expand Deferred Action for Childhood Arrivals (DACA) Program."  Specifically, the DHS memo explains that

"We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two." (emphasis added).

In a memorandum on "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents" to the heads of Immigration and Customs Enforcement, Citizenship and Immigration Services, and Customs and Border Protection, DHS Secretary Jeh Johnson explains the concept of prosecutorial discretion and states that

"I am now expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities . . . . The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources-which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . , and be counted."

The memo announces the following specific measures:

Expanding DACA

-- Remove age cap:  DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i .e., those who were born before June 15 , 1981 ). That restriction will no longer apply.

 -- Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1 , 2010.

In further expamding deferred action, Secretary Johnson 

"directed USCIS to establish a process, similar to DACA , for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:

• have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;

• have continuously resided in the United States since before January 1 , 2010;

• are physically present in the United States on the date of this memorandum , and at the time of making a request for consideration of deferred action with USCIS;

• have no lawful status on the date of this memorandum;

• are not an enforcement priority as reflected in the November 20 , 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum ; and

• present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.

This component of the Obama initiative includes a modest extension of the current DACA program, most notably eliminating the age cap of 31 years on DACA eligibility (which precluded relief for undocumented immigrants like Sergio Garcia, now licensed to practice law in California) and grenting deferred action and work authorization for 3, not 2, years.These are significant changes to the recipients of DACA relief.

The memorandum also outlnes the expanded deferred action program for the undocumented parents of U.S. citizens and lawful permanent residents.  This new program will be discussed in a subsequent post.  The new deferred action program will benefit the many undocumented parents of U.S. citizen children born in the United States.  A considerable number of families today have what are called mixed immigration statuses, with some parents undocumented with citizen children born in the United States.

There was one notable non-change to the deferred action rules that received considerable attention.  There had been talk of extending DACA relief to the parents of DACA recipients.  The Office of Legal Counsel concluded that extension of deferred action to the parents of DACA recipients might not be lawful and it is not part of the President's initiative.


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