Getting Through the Minefield of Deferred Action for Childhood Arrivals (DACA)

By Reeves & Associates 

By now everyone knows what the seven requirements for Deferred Action  for Childhood Arrivals (DACA) are and applicants may quickly conclude that they satisfy the seven requirements. However, as applicants look more closely into this process, they are beginning to realize that it is not as simple as it first appears. 

Applicants applying to obtain DACA relief must navigate through a minefield and this article will point out some of the potential issues and factors that an applicant must watch out for. The goal is to obtain the benefit without potentially hurting yourself or your family in the future. 

Many applicants have been told that they should just file the forms and wait for the United States Citizenship and Immigration Services (USCIS) to send a request for more information.  This advice is nonsense and would amount to a foolish waste of time and money.  It is incumbent upon the applicant to prove he or she is eligible. 

It cannot be stressed enough that USCIS has the absolute authority to deny or approve DACA applications. In certain cases the USCIS may send a request for further evidence. While the applicant may re-file the application or submit further evidence, the resubmission process may result in a delay of several more months. That would mean losing valuable time that might have been spent working and driving to work. As more people apply, the waiting time for adjudication will grow.  While initial applications may be decided in a matter of months, subsequent filings could take upwards of a year or more due to the volume of applications received by the USCIS.  Time is money and an applicant stands to lose thousands in the interim. 

 Obtaining work authorization is a primary goal for the applicants and a grant of deferred status without obtaining a work authorization/ID card would be a pointless exercise. In order to obtain work authorization applicants must prove financial hardship. However, the level of proof required is unknown. Applicants will have a challenging time determining how much information and what type of information is required in order to prove economic necessity. The economic necessity requirement, the type of evidence used to show eligibility, and the potential future use of this information are all minefields that must be navigated in the course of applying for DACA relief.  

The information contained in the DACA application will remain confidential for now except that the USCIS may refer the information to other law enforcement agencies, including the Immigration and Customs Enforcement (ICE), for purposes other than removal of aliens from the United States. Applicants have one file with the Department of Homeland Security (DHS) that follows them everywhere – through every application and petition they file.  This information will be available to USCIS later when you or your parents or siblings are applying for other types of relief. Of course, everything in the application must be true. But whether the information is relevant, whether it is required to be submitted, whether it could be misinterpreted in a manner harmful to a future request for relief are all valid, essential considerations.  

Any criminal history is a major concern for one applying for DACA.  While a felony, serious misdemeanor or three other misdemeanors will automatically disqualify an applicant, the inquiry does not stop there.  Although expungements are not normally considered in the immigration context, they may be recognized for DACA.  On the other side, while convictions in Juvenile Court are not normally considered convictions for immigration purposes, they may be so considered here.  Because DACA is an exercise of prosecutorial discretion (which means the government has very wide, and unreviewable, latitude to make decisions), more than convictions will be taken into account.  Arrests that did not result in convictions will have to be adequately explained.  Suspicion of gang membership (which could be based solely on an innocent tattoo), participation in criminal activities or participation in activities that threaten the United States will all be reasons for denial. Any past activity that might fit these descriptions should be addressed in the initial application.  

Even with no negative history, it is important to show why favorable discretion should be shown to the applicant.  Where any negative history exists, it is imperative that the application contain explanations and proof of rehabilitation sufficient to overcome the problems of the past.

DACA is an important opportunity.  Make your application count.  Seek the help of a knowledgeable and experienced immigration attorney.

Not all types of evidence will be sufficient for all purposes.  Direct evidence is best.  However, where direct evidence is not available, affidavits or circumstantial evidence might be acceptable.  Affidavits will generally not be sufficient for all purposes.  An affidavit might be sufficient to demonstrate proof of the five years of continuous residence despite a gap in other documentation.  It might also be sufficient to address the issue of brief, casual and innocent departures during the five year continuous residence period.  However, since affidavits are written by or for the applicant, they are considered self-serving and are judged very skeptically by the government.  If the affidavit is not effectively drafted, it is not worth the paper it is printed on.   

Circumstantial evidence will not be acceptable for all criteria either.  It might be acceptable for proof of physical presence in the U.S. on June 15, 2012, entry before turning 16, 5 years of continuous physical presence (as long as it is not the only evidence used), and that any travel outside the U.S. was brief, casual and innocent (as said previously – these are words of art with specific meanings unique within the immigration law context).  Here again, the type of circumstantial evidence used and how well it meets the burden of proof is something that is highly complex.