Immigration: Deferred Action for DREAMers

Grecia, Daniel and Luis after the announcement

On Friday, June 15, 2012, President Obama and Secretary of Homeland Security Napolitano, announced that DHS will offer Deferred Action for Childhood Arrivals (DACA). This is a very exciting development that should offer temporary relief to young people who came to the United States as children and have been educated here. 

UPDATES: 

DACA renewal information (06/04/2014) 

DACA statistics (05/15/14) 

DACA renewal information (PRELIMINARY AND SUBJECT TO CHANGE) (04/10/2014)

Texas Immigration Lawyer Blog on DACA Renewal (04/10/2014) 

 

Here is some information on what to do once you receive DACA:

 

DO YOU QUALIFY FOR DEFERRED ACTION? 

  • Did you come the United States when you were under the age of 16?
  • Have you continuously resided in the U.S. since June 15, 2007, up to the present time?
  • Were you physically present in the U.S. on June 15, 2012 AND on the date of your Deferred Action request?
  • Were you under the age of 31 on June 15, 2012?
  • Did you enter without inspection before June 15, 2012, or did your lawful immigration status expire before June 15, 2012?
  • Are you "currently in school" in the U.S. on the date you submitted the application, or have you graduated from High School , obtained a G.E.D., or been honorably discharged from the U.S. military?*
  • Have you NOT been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety?

If you answered YES to all of the above questions, you should qualify to apply for Deferred Status. 

*If you have been honorably discharged from the military, you may be eligible to Naturalize. Check with an immigration attorney to see if you qualify.

WHAT IS DEFERRED ACTION?

Deferred action is a discretionary determination to defer removal action of an individual. Deferred action does not confer lawful status upon an individual, but it does allow those deferred to remain in the U.S. without accruing further unlawful status and to apply for employment authorization for the period of the deferred action. Deferred action can be terminated at any time at the agency's discretion or renewed by the agency. 

Secretary Napolitano's memo instructs Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to defer action for a period of two years, subject to renewal. Because it is a discretionary decision, it will be made on a case-by-case basis, and can be denied even if you qualify.

ARRESTS/CRIMINAL DISQUALIFIERS:

If you have been convicted of a crime, you should NOT apply if the conviction was for a felony, a "significant misdemeanor" or multiple misdemeanors.

How is a felony defined?

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

How is a significant misdemeanor defined?

For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  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.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less. (See USCIS Guidelines)

NOTE: The following offenses are no longer listed as significant misdemeanors (unless the time in custody was more than 90 days): (a) larceny; (b) fraud; (c) obstruction of justice; (d) bribery; (e) unlawful flight from arrest, prosecution or the scene of the accident; and (f) unlawful possession of drugs (but not drug distribution or trafficking). (See DBA Review)

What offenses constitute a non-significant misdemeanor?

For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. Is not 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; and
  2. Is one for which the individual was sentenced to time in custody of 90 days or less.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE. (See USCIS Guidelines)

How many non-significant misdemeanors constitute "multiple misdemeanors"?

An individual who is not convicted of a significant misdemeanor but is convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct is not eligible to be considered for deferred action under this new process. (See ICE FAQs)

Will minor traffic offenses, such as driving without a license be considered a non-significant misdemeanor that counts toward the "three or more non-significant misdemeanors" making someone ineligible for Deferred Action? 

A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether under the totality of the circumstance, you warrant an exercise of prosecutorial discretion. (See USCIS Guidelines)

Will DHS consider expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?

Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process. (See USCIS Guidelines)

"CURRENTLY IN SCHOOL":

To be considered "currently in school" under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action. 

You must be enrolled in:

  • a public or private elementary school, junior high or middle school, high school or secondary school;
  • an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
  • an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including certificate of completion, certificate of attendance, or alternate award), or in passing a General Education Development (GED) exam or other equivalent state-authorized exam.

DISCRETION:

The decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. (See USCIS Guidelines)

FILING PROCESS:

The I-821D application for Consideration of Deferred Action for Childhood Arrivals is now on-line. It will be filed with an I-765 Application for Employment Authorization and a form I-765WS. The total fees will be $465. There will be fee exemptions available in limited situations (See USCIS Guidelines). 

Be sure to include 2 passport photos with the I-765.

If you are ALREADY in removal or deportation proceedings but not being detained by ICE, you will apply for Deferred Action through USCIS not ICE (as previously announced), but you can apply if you are younger than 15 years old if you are in removal or deportation proceedings. 

If you are NOT in removal or deportation proceedings, you will apply for Deferred Action from USCIS. You must be at least 15 years old at the time of application.

EMPLOYMENT:

Employment authorization may be applied for with Deferred Action by filing an I-765 Application for Employment Authorization and a form I-765WSThe total fees will be $465. 

TRAVEL:

Those who have been granted Deferred Action may submit an application to travel and those applications may be granted for a limited number of purposes. There will be an additional fee of $360 to file the I-131 to request permission to travel.

NOTE: Do not travel outside the U.S. after August 15, 2012 without obtaining travel authorization. For more information about how travel will impact an application for Deferred Action, see USCIS Guidelines

SOCIAL SECURITY NUMBER:

The I-821D and I-765 forms ask for Social Security numbers used. Requestors should include only valid Social Security numbers issued by the Social Security Administration. USCIS Frequently Asked Questions (Updated 9/14/2012)

If your DACA request is approved and you receive an Employment Authorization document (EAD), you can apply for a Social Security number. Here are instructions from the Social Security Administration on obtaining a SSN.

DRIVER'S LICENSE:

Whether you can get a Driver's license will depend on the state in which you live. In Texas, the Department of Public Safety accepts an Employment Authorization document as proof that you are lawfully present and eligible to apply for a license if you meet the other requirements. See my blog post for more information about what is required to obtain a driver's license in Texas.

UPDATE: On October 8, 2012, Texas DPS implemented a new process that adds barriers to DACA recipients obtaining a driver's license. See my blog post for more information

WHAT ARE THE RISKS OF APPLYING?

Information provided as part of the deferred action request process will be protected from disclosure to Immigration and Customs Enforcement (ICE) or Customs and Border Patrol (CBP) for purposes of removal proceedings. If the case is denied, the information may be provided if the applicant meets the criteria of USCIS' November 2011 NTA memo. Criminal convictions, arrests, prior immigration problems and fraud in the Deferred Action application process could result in referral to removal proceedings. USCIS stated in the Guidelines that:

If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians.

If you have concerns that your application for Deferred Action may result in your being placed in removal or deportation, see an attorney or BIA accredited representative for help in assessing the risk. 

WHAT DOCUMENTS SHOULD YOU SUBMIT? 

  • Submit documents that show that you qualify. Examples of records that demonstrate eligibility might include: school records, medical records, vaccination records, financial records, employment records.
  • A copy of your birth certificate
  • A translation into English of your birth certificate with a Certificate of Translation in which the translator shows that he or she has accurately translated the document into English.
  • An unexpired picture I.D. issued by a government agency (eg., a passport or country I.D., a school I.D.)
  • If you finished school without graduating, get into a GED course or other qualifying educational course of study. Check out the Texas Education Agency GED website or GED Testing Service website. IF you are enrolled in a GED course, you should meet the "currently in school" requirement.
  • If you have been arrested, obtain copies of all arrest records, charging documents, dispositions (outcomes), sentencing records. 
    • Where a case was dismissed or where charges were not filed, obtain an "Arrest Disposition Report" showing what happened after the arrest. 
    • If you plead guilty or were found guilty by a judge or jury, obtain certified copies of the charging document (Information), Judgement, sentencing, and other documents about the conviction.

FINDING ASSISTANCE:

  • Susan Nelson is consulting with young people who believe they qualify for Deferred Action. There is a $150 consultation fee per person for these meetings. Call us at 254-754-9990 or email us at sinelson@centeximmigration.com to schedule a consultation. 
  • The Baylor University School of Law has conducted Deferred Action Clinics in Fall and Spring for the last 2 years. They plan to have additional Clinics in Fall 2014. For more information, email ImmigrationClinic@baylor.edu. 
  • To find an attorney to help you:
  • Find a BIA accredited representative or Law School Clinic at http://www.immigrationadvocates.org/nonprofit/legaldirectory/
  • DO NOT PAY ANYONE WHO IS NOT AN ATTORNEY OR APPROVED BY THE BIA TO REPRESENT YOU IN IMMIGRATION MATTERS!

 

RESOURCES

LOCAL NEWS REPORTS AND OPINIONS

DISCLAIMER

This page is for informational purposes only and should not be considered legal advice. 

 

Last updated June 4, 2014