by Alyssa Hicks
On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano issued a memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” This memorandum, also known as DACA, was a non-legislative directive instructing the Department of Homeland Security (“DHS”), more specifically Immigration Customs and Enforcement (“ICE”), Customs and Border Patrol (“CBP”), and United States Citizenship and Immigration Services (“USCIS”), that certain eligible individuals who arrived in the United States as children were able to request consideration for deferred action. These individuals would also be eligible for work authorization, but it did not grant any type of conditional citizenship or path to citizenship.
In the memo, Napolitano stated the following: “As a general matter, theses individuals lacked the intent to violate the law . . . . However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are appropriately focused on people who meet our enforcement priorities.” Not only did DACA further the interests of inculpable undocumented immigrants, but it also was a means to execute a cost-effective deportation system by focusing on individuals with bad moral character or who posed a threat to national security. President Obama supported Napolitano’s contention when he gave his remarks about DACA: “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.”
Deferred action is a use of prosecutorial discretion to postpone a removal action against an individual for a certain period of time. Generally, “it is an administrative tool that allows an enforcement agency to prioritize who they prosecute . . . to ‘conserve limited enforcement resources’ and also ‘protect core American values of humanitarianism and fairness.’” It is not a new tool, but one that DHS has utilized for over sixty years. It is often first attributed to the deportation case of former Beatle, John Lennon. To fight for Lennon to stay, his attorney requested information under the Freedom of Information Act (“FOIA”) and found examples of individuals who were “dubbed non-priority” status. This is credited to be the first time deferred action became public. The initiative was titled “Operations Instruction,” with its purpose to identify vulnerable, long-time present, individuals who would suffer greatly if deported. This tool has even been utilized to help undocumented children, and other vulnerable individuals, who would experience extreme hardship way before DACA even existed.
An individual qualified for DACA if they could satisfy a variety of criteria including: when they arrived in the United States, how long they had lived here, and that they did not have lawful status at the time DACA would begin. There is an exception for age if the individual is currently in removal proceedings or have a final removal or voluntary departure order. Continually, DACA qualifications ensured that only the “most deserving” received such this status. Eligible applicants were required to currently be in school, have graduated, are working towards receiving a GED, or were honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Continually, the applicants must 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. Applications must have entered without inspection or have expired status prior to June 15, 2012. DACA requests were reviewed on a case-by-case basis, and meeting all the requirements did not necessarily guarantee approval. DACA also granted work authorization, if that individual is able to show an economic necessity, and those who are able to show economic necessity were issued a social security number.
One of the most significant benefits for DACA recipients is that they do not accrue unlawful presence once approved. Undocumented minors receive almost no benefits from current immigration law—arguably one of biggest flaws in the Immigration and Nationality Act (“INA”). One exception benefitting minors under the INA and that is they do not accrue unlawful presence while under the age of eighteen. Despite the benefit of this exception, it starts holding children accountable for their parents’ actions the day they turn eighteen. At this point they have no way to prevent the time bars that come into effect that greatly hinder their ability to beginning citizens. Individuals who have been unlawfully present for more than 180 days but less than on year who voluntarily departs cannot return for three years. Anyone that is present for a year or more is barred from returning for ten years. Consequently, it is significant for those who receive DACA before their initial 180 days time bar begins because it will strengthen their ability to become a legally permanent resident (LPR) if they become eligible. Individuals do accrue unlawful presence time during the application process if they are over the age of eighteen.
Another benefit is that if you are denied DACA status, USCIS will not report you to ICE for being unlawfully present. Many individuals were hesitant to apply because they feared they or their family would be reported. The only circumstance that would trigger such an inquiry is if an applicant is denied because of a criminal offense, a fraudulent application, is found to be a threat to national security or public safety, or other exception circumstances. Only then, and with actual evidence, will USCIS refer the case to ICE.
DACA has awarded exceptional benefits to qualifying individuals and to our economy. Almost 800,000 individuals have received DACA status. It allows children who received education, courtesy of Plyler, to continue their educations and to rise above the poverty line that many were destined to remain. According to a survey conducted by the Center for American Process, ninety-six percent of recipients are currently employed or in school. Sixty-nine percent have higher paying jobs, eighty-nine percent have received driver’s licenses or state identifications, and twenty-one percent have bought their first car. There is an overall forty-five percent increase in the average wage, which translates to more tax revenue.
Notwithstanding, the issues with DACA are not immeasurable; with significant benefits come significant disadvantages. Even though eighty-six percent of individuals support DACA, there are many who not only take issue with this alleged form of amnesty, but also many believe the non-legislative directive is unconstitutional. DACA has also created a political division on how to best help undocumented children. Generally, Democrats believe that deferred action is an appropriate means for effectively and efficiently managing institutional resources while promoting humanitarian values. While Republicans generally view DACA as an unconstitutional use of executive authority that bypasses Congress’s role as the ultimate lawmaker. Although a majority of Republicans do not support DACA, they are willing to provide Dreamers other type of relief, but one that is discussed and executed through the legislative branch. Because of this political turmoil, legislators are currently struggling to find a solution in the midst of the revocation of DACA. My recommendation is that Congress comes together to find a permanent solution via the DREAM Act.
- Memorandum from Janet Napolitano, Sec’y, DHS, to David V. Aguilar, Acting Comm’r, CBP, Alejandro Mayorkas, Dir., USCIS, and John Morton, Dir., ICE, on Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children (June 15, 2012) http://www.ice.gov/doclib/about/offices/e
- Cobb, Naomi. Deferred Action for Childhood Arrivals (DACA): A Non-Legislative Means to an End that Misses the Bull’s-Eye, 15 Scholar 651, 661-62 (2013).
- Speech by President Obama June 15, 2012 at 2:09 P.M. https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration
- David W. Leopold, What Legal Authority Does President Obama Have to Act on Immigration?, Bloomberg Law Reports (May 16, 2011), http://www.aila.org/content/default.aspx?docid=35404
- Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Cases of Dream Act Students, 21 WM. & Mary bill rts. J. 463, 519 (2013).
- Instructions for Consideration of Deferred Action for Childhood Arrivals, USCIS form I-821D, http://www.uscis.gov/files/form/i-821dinstr.pdf
- Consideration for Deferred Action for Childhood Arrivals Process: Frequently Asked Questions, (Oct. 23, 2014), https://www.uscis.gov/archive/frequently-asked-questions
- Bono, Marisa. When A Rose is Not A Rose: DACA, The DREAM Act, and The Need for More Comprehensive Immigration Reform, 40 T. Marshall L. Rev. 193, 205-06 (2015)
- Immigration and Nationality Act § 212(a)(9)(B)
- WONG/NILC/CAP survey of DACA recipients.