Background of DACA

In June 2012, the Department of Homeland Security (DHS) established the DACA initiative. Under DACA, DHS has the discretion to provide temporary protection from removal from the U.S. (or, deferred action) for noncitizens who came to the country as children.

To be considered for an initial grant of DACA, noncitizens must establish through documentation that they

• arrived in the U.S. before age 16;

• were age 30 or younger and had no legal immigration status on June 15, 2012;

• have continuously resided in the U.S. since June 15, 2007, up to the date of filing;

• were physically present in the U.S. on June 15, 2012, and at the time of the DACA request;

• are in school, graduated from school, or have obtained a certificate of completion from high school, or have a discharge under honorable conditions from the military; and

• have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors and do not otherwise pose a threat to national security or public safety.

To be considered for DACA renewal, recipients must establish through documentation that they:

• did not depart the U.S. on or after August 15, 2012, without advance parole;
• have continuously resided in the U.S. since receiving their approval for DACA; and
• have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

According to USCIS officials, USCIS retains the discretion to determine whether deferred action is appropriate in any given case, even if these guidelines are met.

In 2012, USCIS published guidance stating that it would not provide information from DACA requests to CBP and ICE for the purpose of immigration enforcement, unless to “identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.” USCIS has published this policy on their DACA website under Frequently Asked Questions.

What kinds of cases have been referred to Immigration law enforcement?

So, if only 1% of the total DACA cases have been referred to immigration law enforcement, what kinds of cases are they? According to the GAO report, there are two types of cases that have been referred to ICE: (1) DACA requests involving fraud and (2) DACA requests involving public safety concerns.

DACA requests involving fraud

Common document fraud includes altered or fraudulent documents, such as fraudulent educational credentials, However, according to the GAO report, USCIS may also refer certain types of fraud cases to ICE’s National Lead Development Center for a possible criminal investigation. In particular, USCIS is to refer cases involving large-scale immigration fraud schemes, corruption involving government officials, or other aggravating circumstances.

According to USCIS data that the GAO studied, denials due to fraud are not common and, in most cases, according to the USCIS officials interviewed by GAO, denial of a DACA request does not result in USCIS issuing a notice to appear. USCIS issued 134 notices to appear related to DACA from June 2012 through June 2021, all of which USCIS data reviewed by GAO indicate were for confirmed findings of fraud. Further, according to the USCIS officials interviewed by GAO , the vast majority of these notices to appear were connected to a single, major fraud scheme in fiscal year 2018 associated with a fraudulent document preparer.

DACA requests involving public safety concerns

When USCIS finds indications of criminality in connection with a DACA request, the case is categorized as either an egregious public safety case or a nonegregious public safety case, depending on the type of criminality. Examples of egregious public safety threats include murder, rape, sexual abuse of a minor, human or firearms trafficking, and violent crimes that carry a prison term of at least 1 year. USCIS will refer a case to ICE if it is an egregious public safety case. USCIS does not refer nonegregious public safety cases to ICE that involve DACA requests.

Overall, referrals to ICE involving DACA requestors have been rare. ICE officials told GAO interviewers that USCIS has referred a small number of cases to ICE because most do not meet ICE’s acceptance criteria.

“Specifically, the officials said that ICE does not have the resources to investigate every referral and that its criteria for accepting referrals prioritize high-impact, complex, large-scale criminal cases, often involving large international or criminal organizations. ICE officials stated that ICE typically does not accept referrals involving a single person, unless there are aggravating factors. Such factors could include a person who poses an egregious public safety threat, such as a war criminal or a sex offender, or who has abused a position of public trust. USCIS and ICE officials explained that, due to their limited resources, they generally seek to resolve lower-level fraud cases with an administrative action, such as USCIS denying the DACA request. Of the approximately 900 referrals to ICE from June 2012 through June 2021, USCIS data indicate that about 820 involved public safety concerns, and about 80 involved fraud.”

GAO Report information on deferred action for childhood arrivals, january , 2022

It seems that USCIS is abiding by their guidance concerning information sharing with ICE when it comes to DACA applications. Of course recent statistics are skewed in that USCIS is not accepting any new DACA applications at the present time. They thus only have renewals to review. The people who already have DACA have already proven that they they do not have serious criminal problems otherwise they would not have received DACA in the first place. It is somewhat comforting that 99% of the cases have no issues. Permanent status for DACA beneficiaries is long overdue.

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• The refugee program continues to exist

I do not know what will happen with the Syrian refugees and I hope it will be resolved so that everyone feels secure but nevertheless we should be glad that we have a refugee program at all.  We have admitted people into the United States from all corners of the world. Right now the topic of the day is Syrian refugees, but in our recent past, we have allowed people to enter as refugees from Viet Nam, the former Soviet Union, and Cuba.  We have a tradition, and indeed a responsibility, to admit people into the United States who have been persecuted abroad.  Although there is controversy with the current situation, we should be thankful that we remain in a position to admit refugees.

• Immigrants have strong advocates who are involved litigation throughout the country on their behalf

Advocates have tirelessly worked on litigation relating to the Flores v. Reno settlement which regulates the treatment and conditions of unaccompanied minors in federal immigration custody.  Litigation is also pending concerning the visa bulletin and the State Department’s counting of available visas.  People are calling this litigation “Visagate.”  Finally, there is ongoing litigation about DAPA  ( Deferred Action for Parents of Americans and Lawful Permanent Residents) and an expansion of DACA (Deferred Action for Childhood Action).  By Executive Action, President Obama was seeking to the defer the deportation of certain parents of US Citizens and permanent residents.  He also sought to expand the number of children eligible for DACA.  The State of Texas filed and obtained an injunction against the government in implementing these programs.  Currently the government has filed a Petition for a Petition for a Writ of Certiorari asking the U.S. Supreme Court to overturn the injunction blocking DAPA and expanded DACA.  Despite the setbacks, it is nice to know that we have such strong advocates working on these issues.

• The USCIS website is much improved

I know that it may seem silly to give thanks to a website but it has not always been the case that USCIS had a website that had accurate, current information on it.  In preparation for this blog post, I was able to go to their website and easily find the material I needed.  Over time the website has become easier to use and has been made to include timely and relevant information.  This is not true for all government agencies.  Of course there are still problems with USCIS and the use of electronic technology but at least the website is working well as a place from which to obtain general information.

• We have visas that are issued for humanitarian cases

Humanitarian visas have not been around that long.  U visas, for victims of certain crimes and who have been helpful to law enforcement, have only been around since 2000.  The same is true for the T visa, issued for victims of Human Trafficking.  We are fortunate that our government has recognized these victims and that the law allows them to apply for temporary status, leading to a permanent status. These visas are used a lot now but there was a time, when we did not have them.  They help people remain safely in the United States who would, in most cases, not otherwise have had a way of legally remaining here.
We have a great deal for which to be thankful.  Have a nice Thanksgiving.
 

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With so much rhetoric and posturing going on, it is difficult to know where the presidential candidates stand on anything.  Fortunately,  National Public Radio has devised a chart which lists all of the Presidential candidates and where they stand on immigration issues.  It is nice to be able to look in one place and on one page, and see all of the candidates’ positions.

The candidates’ positions are not too surprising..   All of them, except the Democrats, oppose Obama’s  Executive Action on DACA (Deferred Adjudication of Childhood arrivals).  Thus if a Democrat does not win this next occasion, we will see DACA end in 2016.
The good news is that there is one surprise, or at least a surprise to me.  That surprise is that most of the candidates favor some kind of legal path for status for undocumented individuals.  This does not mean a path to citizenship, only a path to obtain legal status.  There are only a few of the candidates who oppose this.  As to whether there should be a path to citizenship for people who are undocumented, the candidates are divided.
The issue on which they are most divided is whether to support the mandatory use of e-verify.  Their disagreement on that point leads me to believe that people understand that the program is unreliable.
The chart also shows the candidates’ positions on whether we should have a complete U.S.- Mexico border fence and whether there should be an end to U.S. birthright citizenship.
The chart is easy to read and instructive.  It is worth a look.

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