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  • Article: DACA – Lessons Learned By Nolan Rappaport

    DACA – Lessons Learned

    by


    In a memorandum issued on June 15, 2012, the Secretary of the U.S. Department of Homeland Security (DHS), Janet Napolitano, announced the Deferred Action for Childhood Arrivals (DACA) initiative. It provides temporary relief from deportation and work authorization for eligible immigrant youth. Eligibility depends on being able to satisfy the following criteria:

    • The applicant must have come to the United States under the age of sixteen;
    • Have continuously resided in the United States for a least five years preceding the date of this memorandum and be present in the United States on the date of this memorandum;
    • Be in school, have graduated from high school, or have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
    • Cannot have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
    • Cannot be above the age of thirty.[i]

    Deferred action does not confer lawful status, and work authorization is limited to applicants who demonstrate an economic necessity for employment. DHS can terminate or renew deferred action at any time at the agency’s discretion.[ii]

    The following lessons can be learned from the implementation of this program.

    1. Caveat emptor. Deferred action under DACA is not a good or even a safe alternative to statutory relief.

    DACA does not provide a path to lawful permanent resident status. It just offers temporary relief from the threat of deportation and work authorization. Continuation of the program is dependent entirely on the desires of the president, and what one president can accomplish today through executive action, another can undo tomorrow using the same authority. Only bipartisan legislation supported by majorities in both houses of Congress can provide a permanent solution for the undocumented immigrants living in the United States.[iii]

    No recourse is available if an application for deferred action is denied. The denial cannot be reversed by an immigration judge in removal proceedings or by the Board of Immigration Appeals (BIA)[iv] if a removal order is entered and the alien appeals the judge’s decision. Moreover, the BIA does not have authority to reopen removal proceedings or remand a case to an immigration judge to permit an apparently eligible alien to apply for deferred action under DACA.[v] The BIA, however, does advise some aliens that such relief might be available by with the following footnote:

    We note that on June 15, 2012, the Secretary of the Department of Homeland Security (DHS) announced that certain young people, who are low law enforcement priorities, would be eligible for deferred action. The respondent may be eligible to seek deferred action. Information regarding DHS’ Consideration of Deferred Action for Childhood Arrivals may be obtained on-line (www.uscis.gov or www.ice.gov) or by phone on USCIS hotline at 1-800-375-5283 or ICE hotline at 1-888-351-4024.

    Submission of a DACA application can be dangerous to the applicants and to members of their families. The following explanation of how information provided with DACA applications can be used is provided on the DACA Frequently Asked Questions page of the DHS website:

    Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

    This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.[vi]

    Pay particular attention to the last sentence, which warns that the policy, which is not favorable now, can be “modified, superseded, or rescinded at any time without notice.” In other words, an applicant has no way of knowing how the information he provides with his application will be used. This is not likely to be a problem under the present administration if the applicant does not engage in criminal activities and has not made false statements or submitted fraudulent documents in support of his application, but there is no guarantee that future administrations will have the same attitude towards undocumented immigrants as the present one. DACA provides a list of people who have admitted alienage and unlawful presence in the United States and provided DHS with their names and addresses. It seems extremely unlikely that children on the list would be placed in removal proceedings, but many of them will be adults in their late twenties and early thirties when the next president is elected.

    The last legalization program was established 28 years ago by the Immigration Reform and Control Act of 1986 (IRCA). IRCA has a provision providing for confidentiality of information provided with a legalization application, but it does not apply to false statements.

    SEC. 201(c)(6). Penalties for false statements in applications. -- Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.[vii]

    2. Financial assistance is needed with application fees.

    The filing fee for a DACA application is $465, which includes an $85 biometric services fee.[viii] Applicants also must pay any fees required to obtain supporting documents, and some applicants will have to pay for legal assistance as well. Unfortunately, many eligible DACA applicants cannot afford to pay these fees. More than half (58%) of the potential DACA beneficiaries live in low-income households, which is defined as being less than 200% of the federal poverty level. Among those who have a high school diploma or GED but lack a postsecondary degree, 47% are low income. The median family income among this group is $40,000.[ix]

    Fees and related costs are likely to be even higher for a legalization program. Perhaps steps should be taken to encourage banks, credit card companies, and credit unions to provide loans for application fees and other legalization expenses. Such institutions are helping already with DACA application fees. For instance, as of June 11, 2013, the Latino Community Credit Union had made 1,100 loans to DACA applicants.[x] The NYC Dreamer Loan Fund is another example.[xi] Application fees are available also at some banks, such as Second Federal Savings.[xii] The demand for such financial assistance is sure to increase greatly when a legalization program is implemented.[xiii]

    Another possibility would be to make fee waivers available for legalization applicants who cannot afford application fees. U.S. Citizenship and Immigration Services (USCIS) has a fee waiver that is available under certain circumstances.[xiv]

    3. It is important to make legal assistance available.

    MALDEF provides the following list of circumstances, which indicate that there is a need to seek qualified legal representation in its Toolkit on Deferred Action for Childhood Arrivals:

    • The applicants have had any sustained contact with law enforcement authorities;
    • Have been arrested or convicted of a crime as an adult;
    • Were arrested or convicted of a crime as a juvenile;
    • Are currently or were previously in removal proceedings;
    • Left the country in the five years preceding June 15, 2012;
    • Has had any contact with immigration authorities or previously has filed applications, petitions, or other immigration documents; or
    • Previously has used fraudulent documents to work, enter the country, or for other purposes.[xv]

    The same types of circumstances would make legal assistance desirable when people are applying for lawful status under a legalization program.

    The Executive Office for Immigration Review (EOIR) maintains a list of free legal service providers that have been authorized to provide legal services for immigrants. The list provides the names of recognized organizations with attorneys or fully accredited representatives who may be able to provide applicants with free or low cost legal assistance on immigration matters.[xvi] These organizations, however, would not be able to provide assistance for 11 million aliens with a legalization program. Steps need to be taken to expand the number of recognized organizations and accredited representatives to prepare for the demands of a legalization program. EOIR also provides a resource guide for DACA applicants, which includes links to Spanish language websites.[xvii]

    4. More steps should be taken to reduce fraud and maintain the credibility of the application screening process.

    Between August 15, 2012, and June 30, 2013, DHS received 557,412 applications. Of these, 537,662 had been accepted for review (3.5% had been rejected because they were incomplete). As of June 30th, 74.5% of the accepted applications had been approved, 24.5% were still under review, and only 1.0% (5,383 applications) had been denied.[xviii]

    The Center for Immigration Studies (CIS) claims that the high DACA approval rate indicates that DHS is rubber-stamping DACA applications. CIS notes that one quarter of the successful applications during the 1986 IRCA amnesty program were fraudulent, and IRCA required a tougher application review process than DACA. Among other things, the IRCA application process required face-to-face interviews, which is not the case with DACA applicants. CIS maintains that DHS should address public concern that it is not taking proper care to ensure that unqualified and possibly dangerous individuals are screened out and removed.[xix]

    The high approval rate probably is due to putting aside applications that raise questions which require more processing time. It must take less time to approve an application that looks good than it does to process a questionable application. In addition to whatever investigative work must be done to process the questionable applications, denials have to be justified, which can take a considerable amount of time. The high approval rate nevertheless may be a legitimate basis for concern if it due in part to basing employment performance evaluations on productivity. Processors under pressure to meet production goals may spend less time on applications than they should.

    It is a certainty that fraud will be a problem when the next legalization program is implemented. To protect the integrity of the application process, steps should be taken to ensure that there is a sufficient number of properly trained people to process the applications carefully in a reasonable amount of time, and that they are not under pressure to meet production goals to protect their performance evaluations. It also would help to expand the operations of the DHS Document and Benefit Fraud Task Force. The task force works with federal, state, and local counterparts to create multi-agency teams that target criminal organizations and individuals who exploit the United States immigration process with fraudulent documents.[xx]

    5. You can’t please everyone. Or can you?

    People who support the DACA program have complained that processing the applications is taking too long, and people who think DACA is a threat to national security have complained that more time is needed to do thorough background investigations. They are both right, but there is a way to address both concerns.

    Seven years ago, Greg Siskind and I proposed a way to provide virtually immediate relief from the fear of deportation while still providing the time necessary for thorough background investigations in an article entitled, “Pre-Registration: A Proposal to Kick-Start CIR.”[xxi] Applicants would pre-register for the legalization program online. This would not provide the set of benefits contemplated by the Registered Provisional Immigrant status in The Border Security, Economic Opportunity, and Immigration Modernization Act,[xxii] but unlike the DACA initiative, it would be a step towards obtaining lawful permanent resident status. Registrants would download and print a status document with a short expiration date (perhaps thirty or sixty days) that would be replaced by a card with a longer expiration date, which could be renewed periodically to maintain lawful status while a legalization application is pending.

    Registration would provide temporary lawful status and work authorization to encourage people to “come out of the shadows” to live and work in the United States without fear of deportation for unlawful presence or entry without inspection, and according to a recent PEW Research Center survey, most U.S. Hispanics would prioritize, by 55% to 35%, relief from deportation over a pathway to citizenship for unauthorized immigrants.[xxiii] The next step in the process would be to file a legalization application. Additional benefits, such as being able to travel freely in and out of the United States and bringing in family members could be added after the applicant has passed a security clearance and a background investigation.

    Immigration restrictionists may object to even this limited form of lawful status, but the reality is that the undocumented immigrants who would benefit from this program already are living and working in the United States, and it would greatly extend the time available to do thorough security clearances and background investigations before making decisions on legalization applications.

    See the article for more information about how the pre-registration program would work and for a fuller explanation of its benefits.

    6. DACA heeds the warning of the 9/11 Commission to be careful about allowing people we know little about to travel freely in and out of the United States.

    The 9/11 Commission Report warns that, “For terrorists, travel documents are as important as weapons. Terrorists must travel clandestinely to meet, train, plan, case targets, and gain access to attack.”[xxiv] Consequently, undocumented aliens who have been given a temporary lawful status should be given a security clearance and a background investigation before they receive documents that will permit them to fly freely in and out of the United States.

    A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole. Parole is “the authorization to allow an otherwise inadmissible person to physically proceed into the United States under certain safeguards and controls.” Section 212(d)(5) of the Immigration and Nationality Act (INA) provides DHS with the discretionary authority to parole an individual into the United States “for urgent humanitarian reasons” or “significant public benefit.”[xxv] It would be wise to have a similar requirement for legalization applicants until they have passed a security clearance and a background investigation.

    7. Assistance from immigration-serving organizations is needed to ensure that information about the program is distributed as widely as possible.

    According to the Migration Policy Institute, one year into its implementation, the DACA application rate was only 49%.[xxvi] Moreover, there has been a disparity in DACA application rates among different nationalities. Nationals of some countries are dramatically underrepresented in the applicant pool. For instance, 65% of immediately eligible Mexican nationals and 61% of Hondurans have applied for DACA, but only 34% of Koreans and 17% of Filipinos. The most likely explanation is that you have to know about the program to be able to apply, and immigration-serving organizations have done an excellent job of informing nationals of Mexico and other Latin American countries about the program, but not nationals from other countries.[xxvii]

    The Center for American Progress did an analysis of the density of immigrant-serving organizations in each state and concluded that there were more DACA applications in states that had more immigrant-serving organizations. For every additional immigrant-serving organization, the Center found an increase of 70 DACA applications. But the involvement of more organizations has not meant that more people—relative to the overall number eligible in a given state—have applied in those states than in states with fewer organizations. According to the Center, these inconclusive results are most likely the product of various factors, including how much focus each individual organization gives to DACA, differences in how long organizations have been around, institutional memories of assisting with previous legalization programs, resources available, and language-specific outreach strategies.[xxviii]

    The Migration Policy Institute has said that outreach was not universally effective when the IRCA legalization program was implemented either. The national publicity effort was implemented too slowly and some constituencies, particularly non-Hispanic immigrants, were not well served. Outreach occurred on an ad hoc basis instead of according to a comprehensive plan.[xxix] We have to do better when the next legalization program is implemented.

    The role of immigration-serving organizations should be limited to providing information about the program. Only attorneys and the accredited representatives of recognized organizations can provide legal advice about which forms to submit, explain immigration options, and communicate with USCIS on behalf of an applicant.[xxx]



    [i] Memorandum from DHS Secretary Jane Napolitano on “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 2012). http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

    [ii] DHS Frequently Asked Questions on DACA, Question1, “What is deferred action?” http://www.dhs.gov/deferred-action-childhood-arrivals

    [iii] Bipartisan Policy Center Statement (October 2013). http://bipartisanpolicy.org/news/press-releases/2013/10/bpcs-immigration-task-force-releases-statement-expanding-deferred-action

    [iv] Department of Justice, Board of Immigration Appeals. http://www.justice.gov/eoir/biainfo.htm

    [v] “Matter of Maria C. YAURI,” 25 I&N Dec. 103 (BIA 2009). http://www.justice.gov/eoir/vll/intdec/vol25/3659.pdf

    [vi] DHS Deferred Action for Childhood Arrivals, Frequently Asked Questions, “Q10: Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?” http://www.dhs.gov/deferred-action-childhood-arrivals

    [vii] Pub. L. 99-603, Immigration Reform and Control Act of 1986, Title II-Legalization, Sec. 201 Legalization of Status. http://www.uscis.gov/iframe/ilink/docView/PUBLAW/HTML/PUBLAW/0-0-0-1.html

    [viii] USCIS, “Filing Fee,” available at http://www.uscis.gov/i-821d

    [ix] Migration Policy Institute, “Deferred Action for Childhood Arrivals at the One-Year Mark” (August 2013), at p. 5. http://www.migrationpolicy.org/research/deferred-action-childhood-arrivals-one-year-mark-profile-currently-eligible-youth-and

    [x] “Latino Community Credit Union Honored for DREAMer Loan & Refugee Financial Education Initiative.” http://latinoccu.org/news/latino-community-credit-union-honored-for-dreamer-loan-refugee-financial-education-initiative/

    [xi] NYC DREAMer Loan Fund. http://nedap.org/DREAMerLoanFund/

    [xii] Second Federal Savings. https://www.immigrantjustice.org/sites/immigrantjustice.org/files/Dreamers%20Loan%20Flyer%20Eng%20Span%202013%2005.pdf

    [xiii] The author cannot vouch for the legitimacy of any of these organizations.

    [xiv] USCIS, “Fee Waiver Guidance.” http://www.uscis.gov/feewaiver

    [xv] MALDEF, “Toolkit on Deferred Action for Childhood Arrivals” at p. 5. https://maldef.org/resources/publications/

    [xvi] Executive Office for Immigration Review, “Free Legal Services Providers.” http://www.justice.gov/eoir/probono/states.htm

    [xvii] “Resource Guide on Deferred Action for Childhood Arrivals” (DACA). http://www.justice.gov/atj/daca-resource-guide-atj-feb-27-2013.pdf

    [xviii] Audrey Singer and Nicole Prchal Svajlenka, Brookings, “Immigration Facts: Deferred Action for Childhood Arrivals.” (August 2013). http://www.brookings.edu/research/reports/2013/08/14-daca-immigration-singer

    [xix] Jessica Vaughan, “High DACA Approval Rate Raises Amnesty Questions” (April 26, 2013). http://www.cis.org/Announcements/99-Percent-Deferred-Action-Applications-Approved-DACA

    [xx] DHS Document and Benefit Fraud Task Force, available at http://www.ice.gov/document-benefit-fraud/

    [xxi] Nolan Rappaport and Greg Siskind, “Pre-Registration: A Proposal to Kick-Start CIR” (February 2007), available at http://www.ilw.com/articles/2007,0314-Rappaport.shtm

    [xxii] Border Security, Economic Opportunity, and Immigration Modernization Act. https://www.govtrack.us/congress/bills/113/s744/text

    [xxiii] PEW Report: Hispanics prioritize legalization for unauthorized immigrants over citizenship (January 23, 2014). http://www.pewresearch.org/fact-tank/2014/01/23/hispanics-prioritize-legalization-for-unauthorized-immigrants-over-citizenship/

    [xxiv] “The 9/11 Commission Report” at p. 384, ,http://govinfo.library.unt.edu/911/report/911Report.pdf

    [xxv] USCIS, “Application for Travel Document.” http://www.uscis.gov/i-131

    [xxvi] Migration Policy Institute, Table 1 of “Deferred Action for Childhood Arrivals at the One-Year Mark” (August 2013). http://www.migrationpolicy.org/research/deferred-action-childhood-arrivals-one-year-mark-profile-currently-eligible-youth-and

    [xxvii] Patrick Taurel, American Immigration Council, Immigration Impact, “Why Is There a Disparity in DACA Application Rates Among Different Nationalities.” http://immigrationimpact.com/2014/01/16/why-is-there-a-disparity-in-daca-application-rates-among-different-nationalities/

    [xxviii] Center for American Progress, “Undocumented No More” (September 2013). http://www.americanprogress.org/wp-content/uploads/2013/09/DACAReportCC-2-1.pdf

    [xxix] Betsy Cooper & Kevin O’Neil, Migration Policy Institute Policy Brief: “Lessons From The Immigration Reform and Control Act of 1986,” at p. 5 (August 2005). http://www.migrationpolicy.org/research/lessons-immigration-reform-and-control-act-1986

    [xxx] USCIS, “Finding Legal Services.” http://www.uscis.gov/avoid-scams/find-legal-services


    About The Author

    Nolan Rappaport was an immigration counsel on the House Judiciary Committee for seven years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice at Steptoe & Johnson. He is retired now, but he welcomes temporary and part time work.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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