Friday, July 17, 2015
It has been a week of wonders and woes for individuals authorized to work under Deferred Action for Childhood Arrivals (DACA), a special deferred action program implemented in 2012. The legal authority for permitting DACA recipients to work comes from a regulation issued during the Ronald Reagan administration that applies to "An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment."
This regulation applies not only to qualifying DACA grantees but to thousands of noncitizens who have been granted deferred action based on their equities like the presence of a United States Citizen dependent and/or vulnerabilities such as being a victim of domestic violence. Indeed, deferred action is one form of prosecutorial discretion in immigration law and enjoys a long history. The importance of work authorization to DACA recipients was analyzed in a groundbreaking study by Tom Wong, National Immigration Law Center and Center for American Progress. The study analyzed a nationwide survey of DACA recipients and reveals that 76% of respondents are currently employed and that 69 percent of respondents moved to a job with better pay after receiving DACA.
The week has also brought woes to this same population. In response to a threat by a U.S. District Judge to hold the Department of Homeland Security (DHS) in contempt for inadvertently issuing or (re)mailing some 2500 three-year work permits to DACA recipients after the date of a court injunction on a new version of DACA, DHS issued letters to affected individuals and a Fact Sheet advising those who received such a permit to return them or else report to a local office and/or face termination. Specifically, the Fact Sheet says: "If you keep the invalid three-year card, USCIS will terminate your DACA and all employment authorizations, and may consider your actions as a negative factor in weighing any future requests for deferred action, or any other discretionary requests." According to the Fact Sheet and officials, USCIS will also make phone calls and home visits to affected DACA recipients who have not yet returned their three-year work permits.
A second challenge with work authorization for dreamers is the processing delays with properly filed applications for a renewal of DACA and work authorization. According to the Annual Report of the CIS Ombudsman, the office worked to resolve more than 1500 cases involving such delays. According to the annual report "Requests for assistance came from a young man supporting a disabled parent, a new public school teacher in the Midwest, a low-income applicant facing eviction from his apartment an expectant mother about to lose her health benefits due to the imminent loss of employment caused by delays in her DACA renewal."
Work authorization is the lifeline for noncitizens seeking to meet their basic needs and contribute to the United States in meaningful ways. Yet, a rational policy discussion about work authorization for DACA recipients or even additional recipients of prosecutorial discretion have been usurped by litigation and fears in the community and within DHS about the future.
Professor Wadhia is the Samuel Weiss Faculty Scholar, law professor, and director of the Center for Immigrants' Rights at Penn State Law and author of "Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases" (New York University Press, 2015).