OBAMA’s Deferred Immigration Action: DACA/DAPA
On November 20, 2014, President Obama announced a series of reforms modifying immigration policy ( Executive Action), which prevents the removal of individual eligible for deferred action. The President, as head of the federal executive branch, is ultimately in charge of enforcing U.S. immigration laws. The President can make discretionary decisions, through his agencies, about whether and when to grant benefits or pursue enforcement actions. President throughout the history have taken these kinds of actions.
- Announced his efforts to improve critical aspects of the immigration system, such as: acted how immigration laws are enforced; how immigration benefits are processed; how further business innovation is encouraged; and how immigrants are welcomed into the US.
- Authorized the Department of Homeland Security (DHS) to significantly expand its use of deferred action, which includes expansion of the current Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program for parents, Deferred Action for Parental Accountability (DAPA).
- Connected deferred action with other enforcement measures and enforcement priorities to focus attention on national security threats, those with criminal convictions, and recent unlawful entrants.
- Is focused on convicted criminals rather than all unauthorized immigrants encountered by local authorities
- Made changes to and expanded several other programs, including programs that protect unauthorized family members of persons who join the military, in-country processing of waivers of the three- and 10-year admission bars, and protections for high-skilled workers transitioning from a temporary to a permanent legal status
What is deferred action?
Deferred action is a use of prosecution discretion to defer deportation against an individual for a given period of time. Deferred action has been exercised for years and it is granted on a case-by-case basis- meeting the requirements does not guarantee the grant. Although it does not provide lawful status, the individual may also apply for a work permit during the deportation relief period.
How was DACA (Deferred Action for Childhood Arrivals) expanded?
The DACA program is expanded by:
- Eliminating the age ceiling (previously under the age of 31 on June 15, 2012) and making individuals who began residing here before January 1, 2010 (previously since June 15, 2007) eligible.
- If you have been in US for 5 years as of November 20, 2014 and if you were 16 years old or younger when you entered US then you may be eligible.
- Employment authorization will be for three years, previously two years.
** While USCISwill continue to take applications and renewals under current eligibility criteria, those eligible under the new criteria should be able to apply by Feb 2015 **
What is the new DAPA program?
The Deferred Action for Parental Accountability (DAPA) is a prosecutorial discretion program administered by USCIS that provides deferred action (temporary relief from deportation) for three years and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs).
The program is open to individuals who:
- Have a U.S. citizen or LPR son or daughter as of November 20, 2014;
- Have continuously resided in the United States since before January 1, 2010;
- Are physically present in the United States on November 20, 2014, and at the time of applying;
- Have no lawful immigration status on November 20, 2014;
- Are not an enforcement priority (which is defined to include individuals with a wide range of criminal convictions, including certain misdemeanors (further elaborated below), those suspected of gang involvement and terrorism, recent unlawful entrants, and other immigration law violations
- Present no other factors that would render a grant of deferred action inappropriate;
- Pass a background check.
** The DAPA program should be ready to receive applications by May 2015 **
How many people are affected?
The White House estimates that almost 5.2 million unauthorized immigrants could qualify for deportation protection under the DACA and DAPA program:
- DACA: 1.2 million already eligible (based on previous estimates) + 300,000 newly eligible individuals with the program’s expansion
- DAPA: up to 3.7 million unauthorized immigrants could be eligible
Can I be deported if my DACA expired or if I am eligible for DAPA before the new program starts?
- Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have been directed to identify and protect those that are eligible for expanded DACA and DAPA for whom they newly encounter and for whom are:
- Already in their custody
- In removal proceedings
- Scheduled for deportation,
For Eligible individuals in immigration court or before the Board of Immigration Appeals, ICE lawyers are instructed to close or terminate their cases and refer those individuals to USCIS for case-by-case determinations.
What is the fee for the deferred action?
The deferred action programs will have a fee of $465 per application and there will be no fee waivers. Similar to the DACA program that President Obama announced in 2012, there will be very limited fee exemptions.
Why can’t the President just grant a permanent legal status?
President can provide temporary measure, designed to eliminate the fear of removal while the country comes to a resolution about permanent legal status for the unauthorized. Only Congress can determine who is eligible for permanent legal status.
Can I receive public benefits if I am eligible for DACA or DAPA?
Deferred action recipients are eligible for driver’s licenses in the overwhelming majority of states.
Does not include Federal Public benefits, such as:
- Federal Financial Aid
- Food stamps
- Housing subsidies
- Any benefits from the Affordable Care Act
** State benefits and opportunities like in-state tuition and professional licenses will be determined by the law of the state for DAPA recipients **
What does “enforcement priority” mean?
The U.S. Department of Homeland Security (DHS) will be focused on the removal of individuals who are considered a threat to “national security, public safety, and border security.”
Top priorities include persons:
- Engaged in or suspected of terrorism or espionage
- Convicted of felonies
- Convicted of offenses defined as aggravated felonies by the immigration law
- In gang-related convictions or intentional participation in gang activities
- Whom are recent border crossers
Second level priorities includes persons with convictions for:
- Significant misdemeanors (such as domestic violence, burglary, firearms offenses, drug trafficking, and DUI)
- Multiple misdemeanors (three or more)
- Recent border crossing (those who entered after January 1, 2014)
Lowest priorities are individuals whom were ordered for removal after January 1, 2014.
What is an Aggravated felony?
Offenses that are most severely punished under immigration law and that render an immigrant automatically deportable with no possibility of waiver or future readmission to the U.S.
- Sexual abuse of a minor
- Drug trafficking
- Crimes of violence or theft that are punishable by a term of imprisonment of at least one year
** And other offenses. Keep in mind that misdemeanors under state law and convictions for which less than a year in prison is served may be aggravated felonies.**
What is misdemeanor?
The federal criminal classification scheme governs whether an offense is considered a felony or misdemeanor. A misdemeanor is an offense punishable by imprisonment of more than five days but not more than a year. The label a state attaches to a particular offense is not relevant. Thus, some offenses that a state labels as a misdemeanor, but which include a potential sentence of more than one year, are felonies for purposes of DACA. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor.
What is significant misdemeanor?
A significant misdemeanor for DACA process purposes, as defined by federal law, says a misdemeanor, regardless of the sentence imposed, includes burglary, sexual abuse, exploitation, domestic violence, unlawful possession and use of firearm, driving under the influence (DUI), and drug distribution or trafficking. A significant misdemeanor may also include any other misdemeanor for which the individual was sentenced to more than 90 days’ imprisonment, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer.
Rijal Law Firm will strive to update you as new guidelines get released. If you have any questions regarding DACA, DAPA or any other matter do not hesitate to contact us at firstname.lastname@example.org or 9516671919.