26 Aug May aliens in removal proceedings or those with final order of deportation qualify for DACA?
By: Atty. Crispin Caday Lozano
On June 6, 2014, the U.S. Citizenship and Immigration Services (USCIS) announced the renewal process for hundreds of thousands of young non-citizens who received a grant of Deferred Action for Childhood Arrivals (DACA). Renewal of DACA ensures current DACA holders will continue to be safe from deportation for another two-year period. In addition, they will continue to have work authorization and to be eligible to receive a social security number, and, in nearly every state, a driver’s license.
Q. Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
A. This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024.
Q: What is deferred action?
A: Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.
Q: What is DACA?
A: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.
Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the DACA guidelines.
Q: Are all DACA recipients eligible to renew?
A: USCIS has made clear that individuals who initially qualified for DACA will be eligible to renew unless they engaged in certain criminal activity, departed the country without the government’s permission, or stopped residing in the United States.
Q: Is there an age requirement for DACA renewal?
A: No one with DACA will be too old to renew – indeed, as previously explained, it is impossible to age-out of the DACA program.
Q: If the recipient has stopped going to school, will he still be eligible for renewal?
A: Individuals enrolled in school at the time of their initial application will not be disqualified if they had to stop attending to see to other life responsibilities.
Q: Can those seeking DACA grant for the first time still apply?
A: Despite the excitement around renewal, the 1.15 million potential DACA applicants who have not yet filed an initial application should not mistakenly conclude that the application period has ended. Indeed, the agency continues to accept roughly 10,000 new applications each month. Initial registration remains open.
Note: This is not a legal advice