Sept. 5, 2012 – On June 15, 2012, President Obama announced that his administration would offer certain undocumented youth “deferred action.” Deferred action is a wonderful opportunity for many people; however, it is important to understand what deferred action is and what it is not. It is also important to understand what is good about deferred action and what is potentially disastrous.
What is Deferred Action?
Deferred action is an administrative form of discretionary relief from removal from the United States. Removal is what most of us think of as deportation. Essentially, deferred action allows a foreign national to stay in the United States and apply for work authorization. Work authorization, in turn, allows someone to apply for a Social Security number. Although usually renewable, deferred action is valid for only a defined period. Deferred action is not lawful permanent residence and it does not lead to citizenship. No family member can derive a benefit through deferred action. Deferred action is not the long-anticipated DREAM Act (the Development, Relief, and Education for Alien Minors At, which was reintroduced in the Senate on May 11, 2011).
Deferred action is not a new concept. For example, many immigrant victims of domestic violence receive deferred action. This application of deferred action is being called Deferred Action for Childhood Arrivals (DACA).
At first look, DACA’s requirements appear straightforward. Applicants must:
- Be under the age of 31 as of June 15, 2012;
- Have come to the United States before reaching their 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Have been physically present in the United States on June 15, 2012, and at the time of applying;
- Have entered unlawfully before June 15, 2012, or have an expired lawful immigration status as of June 15, 2012;
- Be 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
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Some aspects of DACA are generously defined. For example, school is not limited to a traditional academic setting. School could be a job-training program, an English as a Second Language (ESL) program, or a GED program. An ESL program may qualify if it is a prerequisite for placement in postsecondary education, job training, or employment. Job training may qualify if it is something that is designed to lead to placement in postsecondary education, job training, or employment. Another good aspect is that the U.S. Citizenship and Immigration Services (USCIS) has said that it will not automatically put those individuals who do not qualify into removal. The USCIS also will not use the information to look for family members.
DACA Is Not for Everybody
DACA may not be a good option for some individuals. For some, DACA could be disastrous and applicants should not rush into applying for deferred action.
First, individuals who have any arrest record should speak to an immigration attorney. The problem is that the intersection between criminal law and immigration law is anything but intuitive. The Immigration and Nationality Act (INA) defines criminal conviction very differently from the state of Wisconsin. Deferred prosecution agreements, for example, are often criminal convictions for immigration purposes. Moreover, Wisconsin does not designate some misdemeanors as significant, however, DACA does. A “significant misdemeanor” is any crime of domestic violence, driving under the influence, or for which a person was sentenced to more than 90 days in custody.
Individuals with criminal arrests must be careful. Failure to disclose criminal arrests or fraud in the application could lead to removal. Too, although some criminal convictions in and of themselves may not make an applicant ineligible, the USCIS will consider the totality of each applicants’ record. For example, minor traffic offenses will not make an applicant ineligible, but they will factor into eligibility when the USCIS reviews an applicant’s total history. The USCIS stated:
“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 circumstances, you warrant an exercise of prosecutorial discretion.”
Second, individuals who may be eligible for lawful permanent residency through a family member also should be careful when applying for deferred action. DACA, on a case-by-case basis, may allow a person to have had brief absences from the United States or certain criminal convictions. However, these same absences or criminal convictions may permanently bar a person from obtaining residency through family-based immigration or may postpone eligibility for years.
Third, individuals who have had any trouble at the border or who have been in immigration court proceedings should find competent legal advice. Previous immigrations violations may or may not affect a person’s ability to obtain deferred action. Previous immigrations violations also may have serious consequences on any other form of relief an applicant may have in the future.
DACA is a wonderful opportunity for many immigrants who arrived as children. However, other individuals should speak to an immigration lawyer who can guide them through the potential pitfalls and help in assessing risk. There is no appeal to a denial. But applicants whose denials are a function of a poorly prepared submission could reapply.
A detailed list of requirements, mailing addresses, filing fees, and fee forms are available at www.usics.gov.
About the Author
Barbara J. Graham, Marquette 1993, is services director of Catholic Charities’ Legal Services to Immigrants program, Milwaukee. The program helps new comers seek citizenship or reunify with family members living here, and helps individuals to secure asylum or temporary protection in the United States. Read more about the program at http://www.ccmke.org/Catholic-Charities/FamilyChildrensMinistries/LegalServices.htm.