Encouraging Signs on Deferred Action for Childhood Arrivals

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I'm writing now to provide my assessment of the government's Deferred Action for Childhood Arrivals process (DACA) as it unfolds.  Back in June, I wrote about my doubts about DACA based on the Obama administration's record of empty promises to the immigrant community.  While we still don't know for sure how this program is going to play out--no one has a work permit in their hand yet--developments since June 15 have been encouraging.  

Don't read this post if you are looking for detailed guidance on how to apply for DACA.  The most comprehensive guidance is on the USCIS.gov (U.S. Citizenship and Immigration Services) website:
  • FAQ
  • Form I-821D, with related forms and instructions  
    (if the links are dead, do an internet search for "Form I-821D" or "deferred action for childhood arrivals USCIS").

If you have specific questions about the application process, read the FAQ or consult with an immigration attorney.  If you have ever been arrested or had any contact with the criminal justice or immigration systems (including being stopped at the border, even if you were a child), consult with an attorney.  The government will likely end up deporting some applicants who have criminal convictions that disqualify them for DACA.

On August 3, USCIS issued additional guidance about the process, which they clarified again over the past week in the FAQ.  Here are some highlights:

  • School enrollment: USCIS has taken an expansive view of what constitutes current enrollment in school.  In some cases, enrollment in GED classes, adult high school classes, or even ESL programs will qualify.  However, if an applicant is granted deferred action but fails to complete his or her program or make measurable progress toward completion in the two years of DACA status, the status may not be renewed.

  • Risk to family: USCIS has stated that, even if an applicant is referred to immigration court because he or she meets the criteria for priority enforcement action, the applicant's family members will be left alone.

  • Criminal convictions: USCIS took marijuana possession and shoplifting out of the "significant misdemeanor" category (although convictions for those crimes could still disqualify a person from DACA if the crime is punishable by more than one year in prison).  This will allow tens of thousands of undocumented youth to avoid deportation for minor crimes that citizens only get a slap on the wrist for.  Unexpectedly, expunged adult convictions will not automatically disqualify an applicant from DACA, even if they would have been disqualifying crimes before expungement.  In general, the range of crimes that disqualify a person from DACA is narrower than in the rest of the immigration system.  Hopefully this represents a turning point in how the government treats non-citizens with minor criminal convictions, which would be a step towards securing basic human rights for all non-citizens who have been convicted of crimes.

  • Favorable discretion: DHS can grant DACA to anyone even if they have disqualifying arrests convictions.  This comes directly from the FAQ currently on the USCIS website:

    "Notwithstanding the above [guidance regarding criminal convictions], the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances.  Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion."


    DHS should be pushed to exercise favorable discretion in compelling cases of people who have "significant misdemeanor" or felony convictions, including DUIs.  


  • Negative discretion: By the same token, if DHS denies DACA to someone who meets all the criteria, DHS should be pressured to change its decision.  The more that DHS claims that these decisions are completely discretionary and unreviewable, the more certain we can be that these cases exist more in the realm of politics than of law.  That means anything is possible if you embarrass the politicians enough.  

  • Suing the government: Advocates and organizers should also look for cases that DHS is denying with an eye to potential lawsuits against the government.  The more the government moves immigration policy from the courts to the discretion of the government, the more deferred action looks like a substantive benefit that should trigger due process protections.  

  • Fee waivers: Unfortunately, the administration caved to the GOP's footstamping about the cost of the program and made it extremely difficult to waive the filing fee.  This will be a burden on many low-income families and discourage some people from applying.

  • Fraud: Still up in the air is what parameters USCIS will use to identify cases where an applicant committed fraud or misrepresented information to the government.  If USCIS approaches DACA cases in the same way they treat other cases of undocumented applicants for immigration benefits, we can anticipate that they will wrongly deny a large number of cases.  USCIS currently interprets fraud and misrepresentation very broadly.  If instead, they apply existing laws correctly, this shouldn't be much of a problem.  

  • Prosecutorial discretion: USCIS confirmed in its FAQ on DACA that the broad prosecutorial discretion policy announced in the Morton Memo of June 17, 2012, and subsequent guidance is still in place.  However, what we have seen since June 15 is that ICE and CBP are still ignoring the prosecutorial discretion guidelines in the vast majority of non-DACA cases.  Where there is any question about DACA eligibility relating to criminal issues, ICE has often taken a hard line and tried to deport those people.  I still do not trust ICE or CBP to properly apply the DACA guidelines, and the government should be held accountable for any failure on this point.

Though there is still a lot that we don't know about the program, and though this president has not yet shown that he can be trusted on immigration policy, I encourage everyone who is eligible for DACA to apply.  The more people who apply, the more will come out of the shadows.  Friends, neighbors, coworkers, and relatives may learn about someone's status for the first time.  The need to "pass" as a citizen will diminish.  This will grow the movement and change public perceptions about undocumented people.  On an individual level, DACA approval will provide tangible benefits, including a social security number, work permit, and in many cases, a driver's license.   

One problem I see so far is that too many attorneys are charging too much for DACA applications.  I have heard that in Philadelphia, where I live and work, some attorneys have settled on legal fees of $1500 for a basic DACA case.  Keep in mind that every applicant, except for the few who will qualify under the limited fee exemption guidelines, must pay the government filing fee of $465.  Even many nonprofits are charging a few hundred dollars for legal fees.  

While private attorneys should be able to charge reasonable fees for their services, no one should be paying $1500 for a straightforward DACA case.  I believe a reasonable legal fee for a basic DACA application not involving complicating issues (such as a motion to reopen or significant research on criminal issues) is $500-800.  Some attorneys and nonprofits will charge less than that or hold pro bono sessions.  If there's anything that advocacy groups can do to push private attorneys on this issue, it would help a lot of people afford legal services for DACA.  

In short, signs of how the program is being rolled out are so far encouraging, though some problems in implementation are likely to appear as we move forward.  DACA represents an important step towards equality and justice for undocumented people in the U.S.  Those who are eligible for DACA should apply.  Anyone who isn't sure whether they qualify or not should consult with a reliable immigration attorney.  

If the government later decides to penalize those who were granted deferred action, whether a Democrat or a Republican is in the White House, it will galvanize the community like nothing before.  I dare them to try ...

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This page contains a single entry by David Bennion published on August 16, 2012 12:34 PM.

DREAMer Fire: How Undocumented Youth Hacked The Political System was the previous entry in this blog.

AP's Argument That "Illegal" Is More Accurate than "Undocumented" Doesn't Hold Water is the next entry in this blog.

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