Deferred Action for Childhood Arrivals (DACA)

On June 15, 2012, the Department of Homeland Security (DHS) issued a memorandum announcing that prosecutorial discretion should be applied to certain individuals who came to the United States as children.  It explains that young noncitizens who do not present a risk to national security or public safety and meet specified criteria may receive deferred action for two years, subject to renewal, and may apply for work authorization.

Since June, USCIS has issued FAQs providing more details about the eligibility criteria and request process for DACA, as well as a form and instructions.  The DACA policy does not supersede ICE’s previously issued prosecutorial discretion guidance outlined in the June 17, 2011 Morton memo.  Those in removal proceedings who do not meet the eligibility criteria under DACA may still be eligible for prosecutorial discretion based on the prior guidance.

The LAC, the National Immigration Project (NIP), and the American Immigration Lawyers Association (AILA) have issued a practice advisory, “Deferred Action for Childhood Arrivals,” that summarizes agency guidance regarding DACA and answers some commonly asked questions about the program. The LAC also continues to organize administrative advocacy efforts to ensure that the administration is fairly and consistently implementing DACA.

RESOURCES | ADVOCACY | TELL THE LAC ABOUT YOUR DACA CASES

ADVOCACY

Response to the Department of Homeland Security's notice of revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and accompanying instructions published in the Federal Register on Friday, December 14, 2012 (submitted Feb. 12, 2013). The American Immigration Council (AIC), the American Immigration Lawyers Association (AILA), the Catholic Legal Immigration Network, Inc. (CLINIC), and the National Immigration Law Center (NILC) welcomed changes made by USCIS, but encouraged several additional changes to Form I-821D and the accompanying instructions to make it more understandable and accessible to DACA requesters, particularly those requesters who are unrepresented.

Response to the Department of Homeland Security’s notice of revisions to Form I‐131, Application for Travel Document and accompanying instructions: OMB Control Number 1615‐0013, 77 Fed. Reg. 71432 (Nov. 30, 2012) (submitted Dec. 31, 2012).  The AIC, the American Immigration Lawyers Association (AILA) and the Catholic Legal Immigration Network, Inc. (CLINIC) jointly submitted comments addressing numerous aspects of the Form I-131 instructions including revisions to the instructions that provide guidance to DACA recipients on their eligibility for Advance Parole.

RESOURCES

DHS Resources

Letter from Janet Napolitano, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).

USCIS, Consideration of Deferred Action for Childhood Arrivals Process.  This webpage provides an overview of DACA, including the filing process, and provides links to required forms, the most recent FAQs and other resources.

Practice Advisories

LAC, NIP and AILA Practice Advisory, "Deferred Action for Childhood Arrivals" (updated February 12, 2013).  This practice advisory incorporates recent DHS guidance regarding fraudulent Social Security numbers, required evidence, and travel considerations for DACA requesters.  It also offers strategic advice for attorneys representing individuals who may qualify for DACA.

LAC Practice Advisory, “Brief, Casual and Innocent” Absences from the United States (January 29, 2013). This practice advisory discusses the “brief, casual and innocent” standard under existing case law. Though such case law may inform USCIS’s review of absences from the United States, DACA adjudicators are not bound by these decisions. Courts have often adopted generous interpretations of the “brief, casual and innocent” standard, and it is hoped that USCIS will do the same in the DACA context.

LAC Practice Advisory, Inspection and Entry at a Port of Entry: Where is There an Admission? (January 29, 2013). This practice advisory discusses entries in three common situations: where a noncitizen is “waved” through a port of entry with no questions asked; where entry is gained by fraud or misrepresentation; and where there is a false claim to U.S. citizenship.  With respect to each situation, the practice advisory explores whether an “admission” has occurred, the individual’s immigration status upon entry, and the immigration consequences of the action.  It also discusses the impact of these three types of entries on a DACA application.

Other Resources

Legal Action Center, Our Litigation and Advocacy Page:  Prosecutorial Discretion.  This page provides an overview of developments regarding prosecutorial discretion, including cases, LAC’s administrative advocacy efforts and relevant LAC practice advisories.

IPC Resource Page: Deferred Action for Childhood Arrivals.  This page provides links to DACA-related blog posts, information about the Dream Act and other resources.

National Immigration Law Center, Deferred Action for DREAMers Resource Page.

Own the DREAM. Own the DREAM is a national campaign to help aspiring Americans brought to this country as children take advantage of the opportunity to apply for Deferred Action for Childhood Arrivals (DACA) and work permits. The campaign joins the resources of United We Dream and its partners.  The webpage provides, among other resources, a screening tool, that allows potential DACA requesters to determine if they are eligible for DACA.

Catholic Legal Immigration Network, Inc. (CLINIC), Toolkit for Deferred Action for Childhood Arrivals (DACA) Workshops.  This toolkit is intended to help charitable immigration programs and volunteers develop DACA workshops.  It includes forms and sample documents that can be used or adapted.

Northwest Immigrant Rights, DREAMer Resources.

National Immigrant Justice Center, DREAMer Resource Hub.

Response to Penn State Center for Immigrants Rights FOIA request seeking records pertaining to DHS’s implementation of the Deferred Action for Childhood Arrivals (DACA) Program. DHS responded on March 4, 2013 with roughly 406 readable pages of internal memoranda and guidance used by DHS to implement DACA. Specifically, the FOIA Request yielded:

• National Standard Operating Procedures (SOP) Deferred Action for Childhood Arrivals, prepared by Service Center Operations Directorate, September 13, 2012 (p. 1-140 with Appendices)
• Training Module for Immigration Officers about DACA
• Training Module on Responding to DACA Related Requests through the Service Request Management Tool