DACA brings Hope and Caution for Undocumented Young People

On August 15, 2012, the United States Citizenship and Immigration Services (USCIS) began considering applications under President Obama’s Deferred Action for Childhood Arrivals (DACA) executive order.  Under DACA, eligible undocumented individuals can remain in the United States, without fear of deportation, for up to two years and may also apply for a work permit.  After two years, these applications may be considered for renewal.

To be considered for DACA, young people must meet the following criteria:

• Must be under the age of 31 on June 15, 2012;
• Came to the United States under age 16;
• Lived in the United States from June 15, 2007 until now;
• Currently in school, have already graduated from high school or obtained a general education development (GED) certificate;
• Have not been convicted of certain crimes.

Although many young people will benefit from this program, there are specific issues and consequences of which individuals should be aware.

First, this program is not a pathway to Legal Permanent Resident status (a “green card”) nor is it a pathway to citizenship.  DACA is an executive order made by President Obama, and was therefore not legislation issued by Congress.  Thus, DACA is not a “new law.”  Accordingly, this executive order could be repealed if Mitt Romney is elected in the upcoming presidential election and he decides to change the policy.  Therefore, it is crucial that individuals consider carefully whether the benefit of this program will outweigh the potential consequences of providing identifying information to USCIS.

Second, individuals with a criminal history should be particularly careful with their DACA applications and should examine their entire criminal record before applying.  To qualify for DACA, a person must not have been convicted of “a felony, a significant misdemeanor or multiple misdemeanors, and not pose a threat to public safety or national security” unless there are “exceptional circumstances” to such convictions.  Offenses that do not automatically bar an individual are state immigration offenses, minor traffic offenses, juvenile adjudications, and expunged convictions.  Additionally, USCIS can consider arrests and dismissed charges, current/former gang affiliation, and “criminal participation.”  Thus, USCIS may deny an application after considering an individual’s entire criminal history and determining under the “totality of the circumstances” that an individual poses a “public safety” concern.  The consequences can be severe: if a person applies and has a criminal history, they risk being denied and referred to Immigration and Customs Enforcement (ICE) to be deported.

Lastly, individuals only have one opportunity to apply for DACA.  The consequences of an inaccurate, incomplete, or illegible application can be denial of the application without an opportunity to reapply.  It is imperative that individuals spend considerable time and attention to detail in completing their applications.

To help with the application process, non-profit legal organizations are holding information sessions and workshops to make information more available and to help individuals understand the benefits and potential issues of applying for DACA.  It is important that young people seek as much assistance as possible prior to completing their applications.

For updated information about DACA, visit www.uscis.gov/childhoodarrivals.  If you are in the Ithaca area and would like to speak to someone about applying for DACA consideration, Cornell Law School is providing help to those who may qualify. For more information or questions about DACA, please call 607-255-4196 or e-mail sjt29@cornell.edu.

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