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Posts tagged ‘DACA’

Obama administration crafts new DACA rule to exclude more dreamers

The Obama administration is ostensibly gearing up for comprehensive immigration reform while at the same time acting directly against the interests of immigrants.

On January 18, 2013, USCIS updated its “FAQs” on DACA.

The FAQs are put into quotes because there is at least one rule change dressed up as an FAQ.

USCIS’s update is by now widely known for its affirmation that DACA recipients are considered by DHS to be lawfully present in the United States. This was obviously spurred on by the fact that several states were denying DACA beneficiaries drivers licenses because they did not consider them to be lawfully present in the United States.

At first glance, USCIS’s updates seem to support DACA recipients against boogeyman anti-immigrant states like Iowa or Arizona.  But on closer examination, there is a rule change that was designed to exclude the number of young immigrants eligible for DACA. Question and answer 1 under the heading Miscellaneous states:

New – Q1: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process?
A1: Yes, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process.

This caught my attention because one of our clients would not be eligible under this new rule change.

When the DACA requirements were first published, one only needed to show that one came to the United States before one’s 16th birthday.

In fact, question 13 on Form I-821D asks: Date of Initial entry into the United States. The form emphasizes the importance of the initial entry, not whether the applicant established residence after that initial entry.

Our client did not establish residence in the U.S. until after reaching her 16th birthday. 

Under the rules at the time that our client applied, she qualified and received DACA. Under the new rules, she would not qualify for DACA.

Why did the Obama administration craft a new rule that restricts the amount of young immigrants eligible for DACA? Does Obama want to penalize young immigrants for having been lucky enough to have entered the U.S. for a vacation prior to their 16th birthday?

This new rule makes no sense and is anti-immigrant.

Snippet after snippet after snippet of evidence (De Osorio) reveals the Obama administration acting concretely against the same immigrants that he concurrently purports to want to include in a comprehensive reform package.

When all of the facts point one way, hope is useless. It is time to turn the other way–to abandon Obama–and find a new avenue for reform.

Push Obama to Expand Deferred Action

Deferred Action: No Further Need For Arbitrary Restrictions

Barack Obama won re-election yesterday. His actions on immigration in his first four years were indefensible and extremely anti-immigrant.

Nonetheless, he did do one thing that concretely benefited immigrants: Deferred Action for Childhood Arrivals (DACA).

Now that the election is over, immigration reform advocates must push the Obama Administration to depoliticize DACA and expand it to 1. eliminate any residency requirement; 2. include children who entered the United States before the age of 18; and 3. carve out exceptions to the education requirement for exceptional circumstances that made it difficult to attend school in the United States.


 DACA in its current form is arbitrarily restrictive. Many support DACA and the Dream Act because the undocumented beneficiaries were brought to the United States as children and therefore cannot be held responsible for immigration law violations.

First.To qualify for DACA, an individual must have entered the United States prior to reaching the age of 16. Any child who entered after turning 16 is rendered ineligible for DACA. That means that thousands of 16 and 17-year-old undocumented children are left undocumented for no discernible reason.

The 15 and under requirement penalizes many 16 and 17-year-olds because their parents thought it more prudent to smuggle them into the United States at a more mature age.

Alternatively, many 16 and 17-year-olds came the United States to escape violence in their homelands yet are not eligible for political asylum. The only substantive argument to exclude 16 and 17-year-olds from DACA is that they are more responsible for their transgressions given their older age.

Given that so many of these children came to the United States out of necessity, the apportionment of responsibility for the violation of the immigration law becomes substantially undermined. Regardless of the reasoning behind a 16-17 year old violation of the immigration law, the rationale behind the argument to exclude them from DACA seems more political than substantive.

Second. An individual must have entered the United States on or before June 15, 2007. That means that any undocumented child who entered after the date of June 15, 2007 is destined to remain undocumented for no discernible reason.

This 5 year residency requirement is arbitrary when applied those who were brought to the United States as children. Other residency requirements in Immigration Law, such as the 10-year requirement for nonlpr cancellation of removal, are grounded in the fact that the more time one has resided in the United States, the more equities one has gained.

The law does not explicitly spell it out, but the rationale behind residency requirements is implicit: the more time one has been in the U.S., the more one’s violation of the immigration law is mitigated.

Given that one of DACA’s main rationales for being is that its beneficiaries cannot be held responsible for immigration law violations,  the 5 year residency requirement cannot be justified by stating it “mitigates the child’s immigration law violation.” Put differently, politics was the only reason for the 5 year residency requirement. Now that Obama does not have to worry about an election, it is even more inexcusable to retain the 5 year residency requirement.

The Obama administration cannot in good faith tell the tens of thousands individuals eligible for DACA but for the fact they entered the United States after June 15, 2007 that they are any less deserving of DACA.

Furthermore, those who entered after June 15, 2007 need DACA more than the current beneficiaries. Most of the minors who are  in deportation proceedings are not eligible for DACA. Many have recently arrived in the United States fleeing unthinkable traumas in their home country yet are being punished for their recent entrance into the U.S.


Paula, a 14-year-old,  was living with her elderly grandmother because her parents–who have temporary protected status–were working and residing in the United States. Without adequate supervision, Paula was raped regularly by gang members over the course of several years. In 2011, when the gang members told Paula she would be killed, Paula cracked and told her parents what was happening.  Her parents arranged immediately for her to be brought to the United States illegally.

Paula was placed in removal proceedings when she arrived in the United States.  ICE is now trying to deport her. Paula’s parents registered her in school and she is doing okay.

Unfortunately, Paula is not eligible for DACA. The rape, by itself, means that she is not eligible for political asylum.  Paula is not eligible for Special Immigration Juvenile Status, either, because she lives with both her parents.

She may be eligible for prosecutorial discretion in the form of administrative closure, but this does not allow her to apply  for a work permit or the many other benefits that can come with DACA. Paula is left as she came: undocumented and with the daunting shadow of deportation looming over her every thought.

There is even more reason to expand DACA to children like Paula. Obama has said that DACA was the right thing to do. Exposing the most vulnerable immigrant youth to deportation and undocumented status for no substantive reason is not the right thing to do.

Third, there are many individuals who qualify for DACA except for the fact that they never attended school in the United States.

In many instances, these children did not go to school because they had to work to support themselves or their families. To many immigrant youth, school is a luxury.

Many came to the United States alone or were subsequently abandoned by their parents in the United States. Without an adult to provide basic necessities such as clothing, housing, and food, it is unreasonable to expect these children to attend school. 

As in the example of Paula, for many traumatized immigrant youth it is impossible to pass with satisfactory grades,  especially if they live without parents.

Some must work to support their family members who are unable to support themselves.  These individuals should not be penalized for helping their family before themselves. They still came to the United States as minors and the same rationale applies: don’t penalize individuals for actions they are not responsible for.

Helping Immigrants Requires Action

On the issue of immigration, Obama’s record consisted of empty rhetoric until he announced DACA. As despicable as the political motivations behind DACA were, it is impossible to deny the fact that it has and will profoundly and concretely benefit  tens of thousands of young immigrants.

Obama must expand DACA so that his actions conform with his lofty rhetoric that inspired so many immigrants 4 years ago.