Update on Deferred Action for Childhood Arrivals (DACA)

Deferred Action for Childhood Arrivals (“DACA”) is a form of executive action on immigration, first announced by President Obama on June 15, 2012. In short, DACA provides temporary relief from removal to qualifying young immigrants who arrived in the U.S. as children, are considered “low enforcement priorities,” meet basic requirements for educational attainment, and do not possess a criminal background.

The Department of Homeland Security (DHS, U.S. Citizenship and Immigration Services (USCIS), has been accepting applications for DACA since August 15, 2012, and continues to accept and adjudicate these cases at present.

On November 20, 2014, President Obama proposed an expansion of the prior administrative actions on immigration, including:

  • expanding the eligibility pool for DACA (referred to as “DACA Plus”)
  • creating a similar program for the parents of U.S. citizens and Lawful Permanent Residents ("Deferred Action for Parents of Americans and Lawful Permanent Residents" or "DAPA") 

However, due to litigation challenging the constitutionality of President Obama’s administrative action on immigration, these programs are NOT moving forward at this time. 

Outcome of Recent Litigation on the Proposed Expansion of DACA

On June 23, 2016, the Supreme Court of the United States (SCOTUS) announced a 4-4 tie decision in the case United States v. Texas. This decision (or, more accurately, the lack thereof) means that a prior ruling from the U.S. Court of Appeals for the Fifth Circuit that blocked the implementation of President Obama's executive actions from November 2014 will remain in place for now. Thus, the implementation of the Obama Administration's 2014 deferred-action policy remains blocked by a nationwide injunction. 

However, the existing DACA program, announced on June 15, 2012 is NOT affected by the June 23, 2016 SCOTUS decision, and will remain in place.

In addition, it is important to note that the enforcement priorities for U.S. Immigration and Customs Enforcement (ICE) will remain the same, meaning that low-priority individuals would not be placed in greater danger of removal as a result of the SCOTUS decision. 

Understanding “Deferred Action”

Deferred Action provides temporary relief from deportation/removal. It also prevents an applicant from being placed in removal proceedings in the first place and forms the basis to administratively close pending removal proceedings.  However, it is not Permanent Residence and does not confer nonimmigrant status, nor does it provide a “path to citizenship.” 

Deferred Action will be granted in two-year increments, subject to renewal, assuming the next presidential administration continues to follow this policy. In addition to the application for Deferred Action, DACA Applicants may apply for employment authorization, so long as they can demonstrate an economic necessity for said employment.

Do I Qualify for DACA?

If you are a DACA Applicant, you should submit financial, medical, school, employment, and/or military records showing evidence that you meet all of the following criteria:

  • You were under the age of 16 when you immigrated to the U.S.
  • You were under the age of 31 on June 15, 2012 (i.e. your date of birth is on or after June 16, 1981).
  • You were undocumented as of June 15, 2012 (either having entered without inspection or your lawful immigration status expired prior to that date).
  • You were physically present in the United States on June 15, 2012.
  • You have “continuously resided in the United States” from June 15, 2007, through the date of filing your request for deferred action.
  • You have not been convicted of a felony, significant misdemeanor, or multiple misdemeanors .
  • You do not pose a threat to national security or to the public safety of the U.S.
  • You are currently in school, enrolled in school, graduated from high school, have obtained a general education development (GED) certificate, are enrolled in another qualify program (per USCIS guidance), OR you are an honorably discharged veteran of the United States Armed Forced or Coast Guard.

Applicants who are not in removal proceedings or subject to a final order of removal must be at least 15 years of age as of the date of their application. Individuals who are currently in removal proceedings or subject to a final order may qualify outside of that age range as well.

Whether an applicant has satisfied those requirements and meets the preliminary eligibility guidelines is determined on a case-by-case basis, and whether that applicant thus merits a grant of Deferred Action, is discretionary. There is also no appeal or reconsideration process for denied DACA requests.

Why Should I Contact an Attorney?

It is important for every applicant to obtain a professional legal analysis of his or her situation prior to submitting his or her application to:

  • Ensure that he or she qualifies for Deferred Action
  • Verify this is the best and only immigration option available to him or her
  • Assess whether there are any negative effects to filing the application, depending on the applicant and his or her family’s immigration status, histories, and other factors
  • Avoid the potential negative consequences of applying when one is ineligible (i.e. applying with a “seemingly” minor criminal background that, if determined by USCIS to constitute multiple misdemeanor offenses, could result in the applicant being placed in removal proceedings, rather than obtaining the desired benefit)

Each case is unique, as no one’s circumstances, immigration history or documents are identical. Therefore, it is always a good idea to have a professional review your situation individually. Though the potential benefit of DACA is significant, like any legal matter, if a case is not properly vetted or prepared, the risk of denial or unforeseen consequences can also be high.

Contact Murphy Desmond S.C.to learn more about Deferred Action for Childhood Arrivals and schedule a consultation with a bilingual immigration attorney to find out if this process is right for you.  Call (608) 270-5550 or-mail infoimmigration@murphydesmond.com.

Last updated June 28, 2016

This information sheet provides general guidance about the titled subject, is not to be regarded as legal advice, and does not create an attorney client relationship between Murphy Desmond S.C. and the reader. Because the information herein may become outdated or may not apply to your specific circumstance, it should not be relied upon or used in place of a detailed consultation with a professional advisor. If you need legal advice, Murphy Desmond can help.

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