On January 18, 2013, USCIS supposedly came out with “new” information regarding Deferred Action for Childhood Arrivals.(“DACA”) Of note is the purported clarification of whether or not whether DACA recipients are considered “lawfully present” by DHS.
USCIS’s full answer is as follows:
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 the Department of Homeland Security (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.(emphasis added)
We knew all along that those who received DACA would not be considered unlawfully present for purposes of future inadmissibility. There is no controlling legal definition of what “lawful presence” actually means. However, for purposes of benefits such as eligibility for driver licenses or government-subsidized health care, most states look to the federal government’s definition of lawful presence, which relies heavily upon who is not unlawfully present under INA 212(a)(9)(B)(ii).
Once one looks at the specific definition, this seemingly complicated issue becomes quite simple:
“An alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”
DHS has authorized the stay of DACA recipients in the United States. As such, DACA recipients are lawfully present. So why did USCIS feel the need to clarify this already-established fact just yesterday?
Because the Obama administration intentionally muddied the waters of what lawfully present means for DACA recipients in order to exclude them from medicaid and other health care benefits.
Shortly after USCIS started accepting DACA applications, the Obama administration made it clear that DACA recipients would be second-class deferred action recipients.
To be eligible for medicaid and other health insurance benefits under Obama’s new health law, one must be considered “lawfully present.” Prior the announcement of DACA, 45 CFR 152.2(1)-(7) defined what immigrants were “lawfully present.” Pay particular attention to the classes highlighted below:
Lawfully present means
(1) A qualified alien as defined in section 431 of the Personal Responsibility and Work Opportunity Act (PRWORA) (8 U.S.C. 1641);
(2) An alien in nonimmigrant status who has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission;
(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(d)(5)) for less than 1 year, except for an alien paroled for prosecution, for deferred inspection or pending removal proceedings;
(4) An alien who belongs to one of the following classes:
(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the INA (8 U.S.C. 1160 or 1255a, respectively);
(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of the INA (8 U.S.C. 1254a), and pending applicants for TPS who have been granted employment authorization;
(iii) Aliens who have been granted employment authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22), or (24);
(iv) Family Unity beneficiaries pursuant to section 301 of Public Law 101-649 as amended;
(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President;
(vi) Aliens currently in deferred action status;
(vii) Aliens whose visa petitions have been approved and who have a pending application for adjustment of status;
(5) A pending applicant for asylum under section 208(a) of the INA (8 U.S.C. 1158) or for withholding of removal under section 241(b)(3) of the INA (8 U.S.C. 1231) or under the Convention Against Torture who has been granted employment authorization, and such an applicant under the age of 14 who has had an application pending for at least 180 days;
(6) An alien who has been granted withholding of removal under the Convention Against Torture; or
(7) A child who has a pending application for Special Immigrant Juvenile status as described in section 101(a)(27)(J) of the INA (8 U.S.C. 1101(a)(27)(J)).
Immigrants in category (C)(10) have cancellation of removal applications pending in immigration court. Immigrants in category (c)(18) have outstanding orders of removal and report on an order of supervision. Immigrants granted deferred action outside of the DACA program are also “lawfully present.” Their EAD category is (c)(14).
The Obama administration made a new category for DACA recipients–(C)(33)–so that it could add paragraph 8 to 45 CFR 152.2 to exclude them from medicaid eligibility:
(8) Exception. An individual with deferred action under the Department of Homeland Security’s deferred action for childhood arrivals process, as described in the Secretary of Homeland Security’s June 15, 2012, memorandum, shall not be considered to be lawfully present with respect to any of the above categories in paragraphs (1) through (7) of this definition.
Put differently, if the Obama administration treated DACA recipients as the recipients of Deferred Action of yore, they would have had to include them in the definition of “lawfully present” for purposes of medicaid eligibility.
As one can see from the list above, the federal government already includes many recipients of prosecutorial discretion in the definition of lawfully present.
The reasoning is that if the government is consenting to one’s presence in the country and one is working and contributing to society, one should be afforded the same privileges of society’s most important safety net: medical care.
By intentionally excluding DACA recipients from medicaid, the Obama administration has yet again revealed its cold, disingenuous heart.
On the abstract level, the exclusion of DACA recipients may not seem like a big deal. However, many of these young immigrants are just starting out in the workforce and will not be able to afford health insurance. What happens if a young immigrant gets into a bad car accident, or is diagnosed with cancer? They will have work authorization but will only be able to use it to pay off the mountain of debt left by medical bills.
As per his routine, Barack Obama announced the DACA program with bubblingly flowery words, noting that children of illegal immigrants “study in our schools, play in our neighborhoods, befriend our kids, pledge allegiance to our flag,” and also that:, “it makes no sense to expel talented young people who are, for all intents and purposes, Americans.”
What Obama did not say is that the poorest of these children are not for all intents and purposes Americans when it comes to medical care. He left that dirty work to the bureaucrats in the Department of Health and Human Services, which provided an objectively farcical explanation.
Obama should have some integrity and consider DACA recipients lawfully present for purposes of medicaid eligibility. Lawfully present means lawfully present. It does mean lawfully present depending on the politics du jour.