The Plight of the Undocumented Child and Relief Through DACA

I think the most difficult issues I have dealt with in my several years as an attorney – and especially as a mother – are those that affect the lives of children.  For years, the United States had done little to address the plight of undocumented children.  Although often well intentioned, these children are the victim of a parent’s gamble to enter the United States illegally, knowing they face deportation.  These children are often very young when they enter the United States and recognize the United States as their only home.  Tragically, a parent’s gamble has all too often ended in the deportation of undocumented thriving students to foreign worlds and conditions.

In an effort to address this problem, The Department of Homeland Security (DHS) took a step a little over a year ago (although not a perfect one) towards improving the effects of this country’s immigration laws on students who have studied, are enrolled to study and have kept a clean record irrespective of their illegal immigration status.

On June 15, 2012, DHS passed a law allowing certain individuals who came to the United States as children, and who meet certain guidelines the opportunity to request a consideration of deferred removal proceedings.  Under this process entitled Consideration of Deferred Action for Childhood Arrivals Process, aka DACA, the applicant may defer deportation while also being given the opportunity to work.  The application allows a deferment of two years with the ability to renew status upon expiration.

DACA is NOT the DREAM Act

DACA is often misunderstood as being a part of the DREAM Act.  It is not.  DACA is current, active, standing DHS policy.  Comparably, the DREAM Act (which stands for “Development Relief and Education of Alien Minors”) is proposed federal law not yet in effect.  DACA gives undocumented children who meet certain criteria the opportunity to defer deportation and legally work while living in the US.  DACA, however, does NOT provide successful candidates legal status and thus, is limited in its effect.  Alternatively, The DREAM Act, if and when it is passed, aims to legalize the status of undocumented youth.  The DREAM Act would provide the possibility of legal permanent residency to successful non-documented candidates and even the possibility of citizenship down the line.  Accordingly, DACA falls short of what the DREAM Act would provide.

Although limited in its effect, DACA does have a use and purpose and in fact provides a necessary protection for children who fall under the policy’s criteria.  This is especially true and imperative for those individuals who are in or, are facing removal proceedings.

Is there a risk to applying for DACA?

Yes, as with any immigration matter, it is imperative to meet with a qualified attorney to review whether you meet the criteria to qualify for DACA as failure to properly assess your candidacy may put you in removal proceedings.

What is considered for DACA eligibility?

The USCIS provides the following basic guidelines to help you determine whether you would qualify for DACA relief:

Guidelines

You may request consideration of deferred action for childhood arrivals if you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. 5.    Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Note that all of the requirements must be met and documentary proof offered for the elements listed above.

Conclusion

Ultimately, DACA, although imperfect, has provided much needed protection for America’s undocumented children.

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