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Deferred Action for Childhood Arrivals (DACA)

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Statue of Liberty New York HarborOn June 15, 2012, in an exercise of prosecutorial discretion, DHS announced the Deferred Action for Childhood Arrivals (DACA) initiative, which offers relief from deportation for certain undocumented young people who are in the United States. Although DACA does not offer a path to a US green card or US citizenship, DACA closely resembles various versions of legislation introduced over the last decade and known generally as DREAM, or the DREAM Act, and allows qualifying individuals to temporarily remain and work legally in the US.

Deferred Action for Childhood Arrivals (DACA) Criteria

An individual should satisfy the following criteria before he or she may be considered for DACA through an exercise of prosecutorial discretion pursuant to the Memorandum issued by US Secretary of Homeland Security Janet Napolitano on June 15, 2012:

  • came to the United States while under the age of 16;
  • has continuously resided in the US for at least 5 years preceding the date of the June 15, 2012, Deferred Action memorandum and is present in the US on the date of this memorandum;
  • is currently in school, has graduated from high school, has obtained a general education development certificate or is an honorably discharged veteran of the US Coast Guard or Armed Forces;
  • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and,
  • is not above the age of 30.

The above criteria will be considered in determining eligibility for DACA, whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive relief under DACA and the June 15, 2012, DHS memorandum unless they first pass a background check. Requests for relief pursuant to the DACA memorandum will be decided on a case by case basis. DHS cannot provide assurance that deferred action will be granted in all cases.

Individuals encountered by US Immigration and Customs Enforcement (ICE), US Customs and Border Protection (CBP) or US Citizenship and Immigration Services (USCIS)

  • With respect to individuals who meet the above DACA criteria, ICE and CBP should immediately exercise their discretion on an individual basis to prevent low priority individuals from being placed into removal proceedings or removed from the US.
  • USCIS should implement the June 15, 2012, DACA memorandum consistent with its existing guidance regarding the issuance of notices to appear.

Individuals in removal proceedings but not yet subject to a final order of removal, and who meet the above Deferred Action for Childhood Arrivals (DACA) criteria

  • ICE should exercise prosecutorial discretion regarding DACA on an individual basis for individuals who meet the above criteria by deferring action for a period of 2 years, subject to renewal, to prevent low priority individuals from being removed from the US.
  • ICE should use its Office of Public Advocate to permit individuals who believe they meet the above DACA criteria to identify themselves through a clear and efficient process.
  • ICE should begin implementing the DACA process outlined in the memorandum within 60 days of the date of this memorandum.
  • ICE should immediately begin the DACA process against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review (EOIR).

Individuals not currently in removal proceedings, but who meet the above Deferred Action for Childhood Arrivals (DACA) criteria, and who pass a background check

  • USCIS should establish a clear and efficient process for exercising prosecutorial discretion on an individual basis by deferring action against individuals who meet the above DACA criteria and who are at least 15 years old, for a period of 2 years, subject to renewal, to prevent low priority individuals from being placed into removal proceedings or removed from the US.
  • The USCIS DACA process should be available to individuals subject to a final order of removal regardless of their age.
  • USCIS should implement the DACA process within 60 days of the date of this memorandum.

For individuals who are granted deferred action under DACA by either ICE or USCIS, USCIS will accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.

The DHS Deferred Action for Childhood Arrivals (DACA) process is not yet in effect, so requests for deferred action should not be submitted at this time. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in the DACA process. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283 from 8 am to 8 pm, with questions or to request more information on the new DACA process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new deferred action process should visit the USCIS web site.

Finally, Secretary Napolitano notes that the June 15, 2012, Deferred Action for Childhood Arrivals (DACA) memo confers no substantive right, immigration status or pathway to citizenship.

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