Other Articles by the Author
On Friday June 15, 2012, President Obama announced that he would stop deporting young immigrants who meet certain requirements. It is the role of Congress to pass laws and the President to enforce them. The President can't create laws, but he can modify the regulations currently in place that enforce the laws. So he ordered this program, Deferred Action for Childhood Arrivals (DACA), as a direct response to our broken immigration system. It temporarily eliminates the threat of deportation for youths who would qualify. It is not amnesty. It is not immunity. It is not even a path to citizenship. It makes no sense to expel talented young people who want to staff our labs, start new businesses, and contribute to our country simply because of the actions of their parents.
There are approximately 2,100,000 youths nationwide who qualify for this program. They study in our schools, speak English, play in our neighborhoods, and pledge allegiance to our flag. They are Americans in their hearts, in their minds, in every single way but on paper. They were brought to this country by their parents—sometimes even as infants—and yet they live under the threat of deportation to a country they may know nothing about.
If approved, a participant would not accrue unlawful presence in the United States while the program is in effect; however, deferred action does not forgive any prior or subsequent unlawful presence. If you show "an economic necessity for employment", you will receive employment authorization during the program. You can also apply for a Social Security Number, driver's license, and permission to travel and re-enter the United States.
To apply for DACA you must show that you:
1. Were 30 years old or under on June 15, 2012;
2. Came to the United States before reaching your 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 your 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.
You will also have to complete a background check. It is imperative that you discuss this matter with a qualified immigration attorney before you apply to be sure that you are eligible.
Danger of Suspected or Actual Criminal Activity
Example 1: suspicion of gang activity
You meet the requirements, but you wear gang affiliated tattoos. You made a mistake when you were younger, but successfully left those you thought were your friends. You were never convicted of a crime, but you were arrested once with the gang. You were released and never charged.
This can still raise a red flag. According to the USCIS guidelines, you are eligible as long as you haven't been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or pose a threat to national security or public safety. This fact pattern may fall under the threat to public safety. You must show that you are a good and moral person. Your compelling factors have to be much stronger than the average applicant. You have to show that you are rehabilitated and have no involvement with the gang, and haven't for a long time. Don't ignore the issue. Include the rehabilitation in your application.
Example 2: DUI
You were pulled over after leaving a family party. You didn't think you were speeding or swerving, but you did have one last shot before driving home. At 2 a.m., on a quiet street, that last shot may have gotten you pulled over and arrested. You went to court and decided to plead guilty without speaking to a DUI attorney familiar with immigration law. You paid your fine and never got into any other problems. You don't even drive anymore.
You don't qualify for DACA. A DUI is considered a significant misdemeanor and an absolute bar to DACA. However, you may be able to reopen the DUI through a process called Post-Conviction Relief. It is harder and costlier than just fighting the DUI at the outset, but it can be done. If successful the DUI will not be an impediment to DACA. You must have a qualified DUI and Immigration attorney to help with your case.
Before you apply for DACA order your driver's abstract and criminal background. We have found orders of arrest for clients who failed to appear in court. We have found confusion in the criminal background containing wrong convictions or incorrect orders of arrest. If you have been convicted for a misdemeanor, research whether evidence of rehabilitation and other favorable factors will be necessary to balance out your criminal history. By ordering the information, you can communicate with the court to correct any problems before you apply. Your ability to correct issues is diminished after you have applied.
The program is individual to you. What this means is that every person must apply for themselves. For example, if your wife is granted deferred action, neither you nor your children will automatically receive any benefit. You would have to separately apply for yourself or your kids.
Obama's New Deferred Action 2014
On November 20, 2014, President Obama modified these requirements and created a new category for certain parents. This program is called Deferred Action for Parental Accountability (DAPA). Like DACA, it provides specific benefits to those who qualify. To prove that you that you qualify for DAPA, you will need to establish your identity, your relationship to a United States citizen or lawful permanent resident son or daughter, and your continuous residence in the United States since January 1, 2010.
Specifically, the program requires that applicants:
1. Have American born children or children who are legal United States residents born before November 20, 2014;
2. Have lived continuously in the United States since January 1, 2010;
3. Were physically present in the United States on November 20, 2014;
4. Did not have legal status in the United States on November 20, 2014; and
5. Have not been found guilty of a crime, significant misdemeanor, or three (3) or four (4) minor misdemeanors, and are not a threat to national security or public safety.
Obama's Executive Action also modified DACA removing the age requirement (meaning you can be older than 31 on June 15, 2012 and still apply), and allowing those who came to the United States after June 15, 2007, but before January 1, 2010 (same as DAPA) to apply.
The Temporary Injunction
Two months after the announcement of DAPA, on February 16, 2015, a Texas Federal District Court Judge, Andrew Hanen, issued a preliminary injunction temporarily stopping President Obama's Executive Action. The program has two components: Expansion of Deferred Action for Childhood Arrivals (DACA) which was scheduled to start accepting petition on February 18, 2015; and Creation of Deferred Action for Parental Accountability (DAPA) which was scheduled to start accepting petitions on May 19, 2015.
Judge Hanen's prior statements on immigration show that he was predisposed against allowing the government to exercise prosecutorial discretion in the immigration context. Given this judge's pre-disposition, the narrowness of the ruling is surprising. The Judge didn't find the program unconstitutional. Instead, he ruled that the government failed to properly follow the Administrative Procedure Act. This is a big deal as the government can address those alleged procedural issues. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.
What are some examples of the Judge's language that points to a pre-disposition? The Judge focuses on the government's "failure to secure the borders" and accepts at face value the states claim of financial harm, without any evidence. Meanwhile, the Judge ignored all information showing the economic and social benefits that the expanded DACA and DAPA programs would provide. The Judge referred to the states cost of educating illegal alien children. However, the Supreme Court's Plyler v. Doe decision makes it absolutely clear that the Constitution requires providing education for all children.
The Judge stated that although the government may set enforcement priorities, it can't give those individuals work authorization. The Judge ignore an existing rule that covers DACA and DAPA: 8 CFR section 274a.12(c)(14), which does just that, "[a]n 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." The federal government has challenged this ruling. I am confident the federal government will ultimately prevail and that DAPA and expanded DACA will be fully implemented, eventually.
This was not the first lawsuit challenging Deferred Action. In December 2014, U.S. District Judge Beryl Howell dismissed a challenge brought by Sheriff Joe Arpaio in Arizona. The Judge found that Arpaio hadn't shown the direct harm from the President's actions needed to maintain a lawsuit in federal courts. The most important point in the decision is that the judge agreed with the legality of the executive action, meaning it falls within the realm of prosecutorial discretion. That fact that the deferred action program represents a large class based program doesn't make it unconstitutional since it retains a case by case review. This decision was recently affirmed by the Court of Appeals.
In 2012 Mississippi challenged the legality of the DACA program in a case similar to the Texas lawsuit. The case was dismissed be-cause the judge found the alleged economic hardship claimed by the state was speculative. Since then, studies have shown that the deferred action initiatives are economically beneficial.
While the government challenges the judicial objections to the DACA and DAPA programs, in the meantime, you should find out whether you qualify for Deferred Action or any legal status. If you qualify for any immigration benefit, you should talk to an attorney and get started. If you qualify for DACA under the 2012 guidelines, you can still apply. If you only qualify for DACA or DAPA under the 2014 requirements, you should begin preparing to apply by collecting the documents you need and making sure you aren't disqualified. Your best chance of success is preparation.
Can Deferred Action Help Me Get a Green Card?
Deferred Action is a temporary reprieve from deportation for a qualified group of immigrants. If they meet the criteria, the immigrant will get three years of work authorization (depending on the program) in addition to protection from deportation. This program needs to be renewed every two or three years. How can one use Deferred Action in order to achieve a permanent legal status?
For immigrants who have an immediate relative that can apply for their green card and entered the U.S. illegally, Deferred Action can be the first step to a permanent legal status. How? Well, first the immigrant must apply and receive Deferred Action, either DACA 2012, DACA 2014 or DAPA 2014. Once the deferment is granted they need to apply for what is called Advance Parole. This is a process whereby the immigrant is granted permission to return to the U.S. after visiting their home country. The travel is typically for a humanitarian, job, or educational reason. It can't just be, "I miss my family."
After Advance Parole is granted the immigrant must leave the U.S. Upon their return, the immigrant will be "admitted, inspected, or paroled" into the U.S. This gives them a legal entry into the U.S., even if they initially entered without inspection, which can be used as a basis for an adjustment of status application based on a qualified relation-ship to a U.S. citizen spouse, parent, or child over 21.
Case Example - Sergio
Take for example, Sergio. He was born in Chile but entered the U.S. without inspection in 2002. He is married to Magdalena a U.S. citizen and has two U.S. citizen children. His wife could today apply for his green card but because he entered without permission he would need to do consular processing outside the U.S. Because he lived in U.S. for years without permission, when he leave he would be subject to the 3 and 10 year bar that means he must apply for and receive a waiver to forgive his time in the U.S. without permission or he can't return for 10 years. He hasn't applied for that reason. He can apply for the waiver in the U.S., but just doesn't want to take the risk. So he stayed without legal status for over 10 years.
Sergio will now be able to apply for DAPA. Once he has DAPA he then applies for Advance Parole. President Obama announced on November 20, 2014 that Advance Parole is not counted towards the 3 and 10 year bar since the immigrant applied and received permission to return to the U.S. Once he returns to the U.S., his legal entry now allows his wife or his children (if one is over 21) to apply for his green card. Based on 2015 processing times, in 4 to 6 months after filing for his adjustment of status, Sergio could be a lawful permanent resident.
What about immigrants that are in process for the Provisional Unlawful Presence Waiver that President Obama initiated in March of 2013? This same process can be used for them. If the couple has difficulty showing extreme hardship to a U.S. citizen or Lawful Permanent Resident spouse or parent, they can use the Advance Parole to gain a legal entry and file for adjustment of status. This would be a longer process than someone that already is at the waiver stage, but for some this may be more certain.
As you can see, immigration sometimes requires some creative thinking to solve immigration challenges. Although for many Deferred Action is temporary relief, for every DAPA applicant, if the law doesn't change, each would ultimately be able to use Advance Parole and with a legal entry will qualify for a family based green card, at some point in the future.
Free Resources
Here are some books to help you on your immigration journey…
1. Do You Need an Immigration Attorney? You Might Not – Only an attorney can help you if you are in removal proceedings, but maybe you want to file a particular petition. Find out how an attorney can help.
2. 7 Critical Questions to ask Before Hiring an Immigration Attorney – How to find the right attorney? Find out in this book.
3. An Immigrant's Guide to Municipal Court – Are you, a loved one, or a friend concerned that criminal charges may result in removal proceedings? Or are you already in removal proceedings? Find out what to expect in this book.
