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Deferred Action for Childhood Arrivals
DACA
You may request DACA if you:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Had no lawful status on June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- 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.
The Beginning
The Creation
On June 15, 2012, the Secretary of Homeland Security issued a memorandum that created DACA.
These applications were filed on a Form I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS.
USCIS had sole jurisdiction over these cases.
If an individual was in removal proceedings:
In removal proceedings
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
• ICE is also instructed to immediately begin the process of deferring action 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.
For those not in removal proceedings
Not in proceedings
• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
• The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age.
• USCIS is directed to begin implementing this process within 60 days of the date of this memorandum.
Deferred Action for Parents of Americans and Lawful Permanent Residents
DAPA
1. As of November 20, 2014, have been the parent of a U.S. citizen or lawful permanent resident (LPR);
2. Have continuously resided in the United States since before January 1, 2010;
3. Have been physically present in the United States before November 20, 2014, and when applying for relief under DAPA;
4. Have no legal immigration status on that date;
5. Not fallen within the DHS civil enforcement priorities implemented in November 20, 2014
6. Present no other factors that would make the grant of DAPA relief inappropriate in the DHS's exercise of discretion.
The Rescission of DAPA
Being an immigration attorney in 2020
The Rescission
The DAPA provisions of the November 20, 2014 DAPA Memo never took effect. Twenty-six states, led by Texas, filed suit against the DHS's DAPA policies. The United States District Court for the Southern District of Texas granted a preliminary injunction against the implementation of the DAPA provisions of the DAPA Memo. Eventually the legitimacy of this injunction was brought all the way to the Supreme Court.
An equally divided Court affirmed, by per curiam opinion, the judgment of the appeals court below. That court had temporarily halted implementation of the federal government's Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA") on the grounds that the policy likely violated the Administrative Procedure Act. The case will go back to the federal district court to determine whether DAPA should be permanently enjoined.
The District Court granted the stay, noting that the June 15, 2017, memorandum repealing DAPA has a direct bearing on the case, and that the two week stay will give the Government and Texas additional time to confer regarding the proceedings. The February 16, 2015, injunction against the implementation of DAPA remains in effect.
Continued
Rescinding DACA
On September 5, 2017, Trump rescinded DACA by issuing an executive order.
Subsequently, the rescission of DACA was challenged in Courts.
Rescinding DACA
Department of Homeland Security v. Regents of the University of California
Case
Under the APA, an agency must supply “reasoned analysis” for its actions. The rescission memorandum failed to consider the possibility of eliminating benefits eligibility while continuing forbearance, relying solely on the Attorney General’s conclusion regarding the illegality of benefits. Moreover, the rescission memorandum failed to address whether there was “legitimate reliance” on the DACA Memorandum. While an agency does not need to consider all policy alternatives, it is required to assess “important aspects” of the problem before it. Given that deferred action was not only “within the ambit” of DACA, but its “centerpiece,” the failure to consider these options rendered the decision arbitrary and capricious.
DACA Today
Now
On July 28, 2020, Acting Secretary of Homeland Security Chad F. Wolf announced that in response to the Supreme Court’s decision, the Department of Homeland Security will take action to thoughtfully consider the future of the DACA policy, including whether to fully rescind the program.
In the interim and to address serious concerns with the policy, the Department of Homeland Security will make the following changes to DACA immediately:
- Reject all initial requests for DACA and associated applications for Employment Authorization Documents;
- Reject new and pending requests for advanced parole absent exceptional circumstances; and,
- Limit the period of renewed deferred action granted pursuant to the DACA policy after the issuance of this memorandum to one year.