Update on Deferred Action for Childhood Arrivals (DACA) (January 31, 2014)
By Tatyana Delgado, CLINIC Training and Legal Support Attorney
On June 15, 2012, the Secretary of the U.S. Department of Homeland Security issued a memorandum allowing individuals who entered the U.S. as children and meet certain guidelines to apply for Deferred Action for Childhood Arrivals (DACA). U.S. Citizenship and Immigration Services (USCIS) began accepting DACA applications in August 2012 and issuing DACA approvals in September 2012. This article provides updates on a variety of issues related to DACA eligibility and adjudications.
Given that DACA grants are valid for two years, the DACA renewal period is approaching. USCIS has not yet released a final comprehensive explanation of the DACA renewal process. However, on December 18, 2013, USCIS issued a draft revised I-821D, including proposed DACA renewal policies and procedure, for public comment. Highlights of the proposed policies and procedure include:
- A renewal application may not be submitted more than 120 days prior to the end of the individual’s current DACA grant period.
- Renewal applicants must have continuously resided in the U.S. since submitting the initial DACA request.
- DACA recipients who were “enrolled in school” (includes secondary school, education, literacy, or career training programs) at the time of the initial application must have made substantial progress, graduated from school, passed General Education Development (GED) test or other equivalent, enrolled in post-secondary education, or obtained employment.
- Renewal applicants may not have departed the U.S. on or after August 15, 2012 without advance parole.
- Individuals who initially received DACA from U.S. Immigration and Customs Enforcement (ICE) must respond to all of the questions in Form I-821D and provide supporting evidence of initial eligibility.
Public comments on the proposed DACA form and instructions are due on February 18, 2014. CLINIC will be submitting comments and we encourage our affiliates to use this opportunity to share their thoughts with CLINIC Training and Legal Support Attorneys Tatyana Delgado, firstname.lastname@example.org and Ilissa Mira, email@example.com.
Many individuals who are eligible for DACA have not yet applied. Estimates from the Migration Policy Institute (MPI) indicate that 1.76 million individuals are or will become eligible for DACA. The latest USCIS report (dated September 11, 2013) stated that USCIS had received more than 580,000 DACA applications. The majority of DACA applications have been approved. Specifically, USCIS had approved over 450,000 cases and denied over 9,500 cases.
In September 2013, the Center for American Progress (CAP) issued a report titled Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA, outlining a series of findings regarding the DACA applicant pool. CAP found that certain states, such as Florida and New Mexico, have low DACA application numbers. While the DACA applicant pool is diverse, individuals from certain parts of the world, such as North and Central America (excluding Mexico), Asia, and Europe, are underrepresented in the applicant pool. The average DACA applicant is 20 years old. According to CAP, older applicants are more likely to be denied than younger applicants. This may be attributed to difficulties with establishing DACA eligibility among those who are no longer attending school.
Case Processing Times
USCIS reports that the average processing time for DACA applications is six months. Several legal advocates have reported that DACA applicants are facing processing times that are longer than six months and in some cases, longer than one year.
For cases that have been pending for more than six months, legal representatives or applicants may call the USCIS National Customer Service Center (NCSC) to inquire about the case. The USCIS customer service representative should provide a referral number. USCIS uses the referral numbers to track questions. If there is no response from NCSC within 15 days, e-mail the service center where the application was filed. The e-mail should include the application receipt number, date, alien number, NCSC referral number, and details regarding communications with NCSC. Here are the regional service center e-mail addresses:
- CSC - firstname.lastname@example.org
- NSC - email@example.com
- TSC - firstname.lastname@example.org
- VSC - email@example.com
If there is no response from the service center within 21 days, contact USCIS Service Center Operations by e-mailing SCOPSSCATA@dhs.gov. Legal representatives or applicants may also contact the USCIS Ombudsman’s office by completing a case assistance form. In addition, CLINIC affiliates may contact CLINIC for assistance with long pending cases.
DACA applications require documentation proving that applicants satisfy the eligibility guidelines. Evidence of physical presence, continuous residence, educational or professional development, and undocumented status are key pieces of the application.
Although many individuals who satisfy the DACA eligibility guidelines have faced challenges with gathering the required documentation, legal advocates have been successful in helping clients overcome these challenges. For example, Graham Bateman, an attorney with the Central Louisiana Interfaith Immigration Center, successfully assisted a DACA applicant who received a Request for Evidence (RFE) of continuous residence in the U.S. since 2007. To supplement the school attendance records already submitted by her client, Graham helped the client obtain declarations from an individual who rented a mobile home for the client, a church leader, and a relative attesting to the client’s presence in the U.S. The client was approved for DACA.
In another case, Sister Mary Ellen Burns, an attorney with Apostle Immigrant Services, successfully helped an applicant gather evidence proving that he was present in the U.S. on June 15, 2012. The client, a Jehovah’s Witness, had graduated from high school in June 2011 and participated in preaching teams regularly. The leaders of the preaching teams maintain logs of the preaching hours for each of the members. Thus, the leader of the congregation submitted a letter explaining their practices and listing the hours that the client had spent preaching in June 2011 through August 2012. The client was approved.
In addition, DACA applicants who indicate that they are “currently in school” may receive RFEs seeking evidence that they have completed or continue to be enrolled in a qualifying program. For DACA purposes, “currently in school” may include enrollment in various types of educational or career training programs, such as a GED preparation program. Applicants should be counseled that USCIS may request proof of program continuation or completion; therefore, it is important for applicants to continue to pursue their educational or career training program goals.
Continuous Residence Guideline - Brief, Casual, and Innocent Departures
Legal advocates report that DACA applicants with multiple or extended absences have been successful in meeting the DACA continuous residence requirement. Clients should explain the purpose of the departure and provide evidence of the brief, casual, and innocent nature of the departure. For example, in one approved case, the applicant traveled to another country for three months in 2008 at the age of 12. The application included a letter describing the reason for the trip, which involved the need to obtain original documents that could only be retrieved in person in the native country. This was the only trip that the client had taken during the continuous residence period. Another approved case involved a client who had three brief departures during the continuous residence period. One departure lasted three weeks, another two weeks, and the last departure lasted a few days. The client explained that the purpose was to visit a sick grandmother who eventually passed away and provided documents showing the visits were brief and innocent.
What about clients with longer absences – can they successfully apply for DACA? CLINIC is aware of at least one approved case involving an individual who left the US. for six months to obtain professional training and evaluation related to a special talent. The applicant provided affidavits explaining the purpose of the trip and the application was subsequently approved.
As part of the DACA application form, applicants are expected to inform USCIS whether they have been arrested, charged with, or convicted of a felony or misdemeanor in the U.S. This includes incidents handled in juvenile courts. While juvenile delinquency matters do not bar an individual from DACA, USCIS may consider these matters when deciding whether to exercise prosecutorial discretion.
Legal advocates have reported that clients with juvenile delinquency dispositions have received DACA. Submitting evidence of positive equities for clients with juvenile delinquencies is highly recommended. For example, Nubia Torres, the Victims and VAWA Program Manager at Catholic Charities of Dallas, reported that a DACA client with a juvenile delinquency disposition based on a residential burglary was approved. This negative factor was overcome by evidence of satisfactory completion of probation, and the applicant’s strong academic record, including his enrollment in college.
USCIS has also indicated that applicants must provide records of all arrests unless disclosure of such records is prohibited under state law. Thus, legal advocates should become familiar with the sealing and confidentiality laws that apply to juvenile records in their states. In some states, juvenile records may not be shared with USCIS without a state court order.
Review of DACA Denials
The USCIS Frequently Asked Questions (FAQs) on DACA indicate that applicants may seek review of DACA denials where (a) the denial is based on abandonment, but the applicant can show that s/he timely responded to the RFE; and (b) USCIS mailed the RFE to the wrong address even though the applicant submitted a proper change of address form before RFE was issued Review may be requested by calling the NCSC and seeking a service request using the Service Request Management Tool (SRMT). An applicant or legal representative may also submit a written request for administrative review to the regional service center that adjudicated the case.
Legal advocates are encouraged to seek review of other types of USCIS errors. For example, Christina Leddin, Immigration Specialist with Amigos Center, was able to overcome a DACA denial based on the applicant not establishing that she warranted a favorable exercise of prosecutorial discretion. Thinking that the denial might be based on a discrepancy between the applicant’s true first name and the first name that appeared in some of her supporting documents, Christina argued that the denial was a USCIS administrative error. In her request for case review, Christina explained the reason for the name discrepancy, and the case was ultimately reopened and approved. CLINIC affiliates may contact CLINIC for assistance with seeking review of denials.
Travel Abroad using Advance Parole
DACA recipients are eligible to apply for advance parole to temporarily travel abroad for educational, employment, or humanitarian reasons. To date, DACA recipients have received advance parole approvals to visit sick relatives, study abroad, and conduct field work related to an academic course of study, among other reasons. Several DACA recipients have reported that they left and returned to the U.S. with advance parole without any hurdles.
In certain circumstances, DACA applicants returning to the U.S. with advance parole may qualify for adjustment of status under INA 245(a). Indeed, one attorney for a DACA recipient reported that his client successfully adjusted status based on his marriage to a U.S. citizen following his return to the U.S. with advance parole.
CLINIC will continue to inform our network about developments in DACA adjudication policy and procedure, including updates on DACA renewals. We applaud the vigorous and creative advocacy of the DACA advocates in the CLINIC network and we thank you for sharing your stories and strategies with your CLINIC colleagues.
Special thanks to Graham Bateman, Sister Mary Ellen Burns, Christina Leddin, and Nubia Torres for their contributions to this article. Please continue to share your updates, challenges, and successes with CLINIC Training and Legal Support Attorneys Tatyana Delgado, firstname.lastname@example.org, and Ilissa Mira, email@example.com