A Guide to Deferred Action for Childhood Arrival (DACA) Process

Laura Barrow
In Association with the Florida School Counselor Association

A Guide to Deferred Action for Childhood Arrival (DACA) Process

By Laura Barrow Publication Date: September 17, 2013 According to the Department of Homeland Security, as of January 2011, there were an estimated 11.5 million undocumented immigrants in the United States, with Florida accounting for approximately 740,000 of these individuals. (Hoefer, Rytina, & Baker, 2012) If you are a practicing school counselor in Florida, you undoubtedly have students (and/or their parents) who are among this group and will need your support and expertise. Regardless of ones position on United States immigration policy and reform, it is hard to deny that the children are the innocent victims, having arrived in the U.S. through no fault of their own. For over 30 years, this country has recognized the rights of undocumented children to receive the same K-12 educational opportunities as those afforded to U.S. citizens and legal residents (Plyler v. Doe, 457 U.S. 202 (1982)). However, without proper documentation, undocumented students as well as their families are unable to work in the U.S. legally and ultimately face the threat of deportation. Our undocumented students already face many challenges, including limited postsecondary education and work opportunities as well as the ultimate threat of deportation. Their futures after graduation are fraught with uncertainty. As school counselors, we have a duty to promote the welfare of all our students, particularly those who are most vulnerable. In fact, the National Association of Secondary School Principals has provided a statement concerning undocumented students, listing several guiding principles and recommendations for all stakeholders in education, from government policy makers to school leaders. (National
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Association of Secondary School Principals, 2011). Two recommendations for school leaders, quite applicable to school counselors, are as follows: If an undocumented student discloses his or her immigration status, encourage the student to seek legal assistance immediately and connect the student with a reputable legal service agency if requested. Assist undocumented youth as they navigate the immigration process by helping them prepare the appropriate documents and supporting their attendance at immigration-related appointments.

(National Association of Secondary School Principals, 2011). So, clearly, it is imperative that school counselors be aware of recent immigration reform efforts that will benefit these students. Specifically, this article will address the current Deferred Action for Childhood Arrival (DACA) process, and in particular, what school counselors can do to help eligible students and their families receive DACA approval. What is DACA? DACA is an official policy announced by the Department of Homeland Security (DHS)) in a memorandum issued on June 15, 2012. (Napolitano, J., 2012) DACA is not a federal statute or executive order, but rather a formalized list of written guidelines that allows Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion when enforcing U.S. immigration laws. (Jacobs, 2012) Notably, ICE already has a priority list for deportation, wherein 96% of those deported fall within one of four categories: (1) convicted criminals; (2) immigration fugitives; (3) repeat immigration violators; and (4) border removals. (U.S. Immigration and Customs Enforcement, 2013) Thus, families who have been in this country for a number of years and do not fall within any of these categories are already at a low risk for being deported. DACA, however, provides more detailed guidelines that do more than

simply place certain immigrants on a low priority status for deportation. As discussed in more detail below, DACA approval allows an undocumented immigrant the right to live in the U.S. legally for up to two years (deferred action may be extended an additional two years), obtain a workers permit, obtain a social security number, and, in some states, obtain a drivers license. It is important to understand that DACA is not a path to citizenship or legal residency. While DACA is not the DREAM Act, on more than one occasion I have heard school administrators and students alike refer to DACA as the DREAM Act. DACA approval does not confer legal immigration status. Nevertheless, DACA approval will officially delay any threat of deportation while allowing the individual to work legally in the U.S. What is the DREAM Act? Again, DACA is not the DREAM Act. In fact, there is no enacted DREAM Act (i.e. Development, Relief, and Education for Alien Minors Act). While versions of the DREAM Act have been introduced in Congress repeatedly since 2001, the bills have never become law. (Warley, M. 2012) Notably, however, as of the writing of this article, the most recent version of an immigration reform bill, S. 744 (titled Border Security, Economic Opportunity, & Immigration Modernization Act) has passed the Senate and currently includes Section 2103, titled The DREAM Act. If this bill or an amended version that substantially retains Section 2103 is passed, it will be even more critical that eligible undocumented immigrants apply for DACA approval, as it can speed up their path to citizenship.

Who is eligible for DACA approval? It is important for school counselors to understand that DACA approval is not available to all undocumented immigrants. In order to be considered for deferred action, individuals must meet the following criteria: (1) Be under the age of 31 years as of June 15, 2012; (2) Arrived in the U.S. before the age of 16 years; (3) Have continuously resided in the U.S. since June 15, 2007; (4) Were physically present in the U.S. on June 15, 2012 and at the time of filing for deferred action consideration; (5) Entered the country without inspection before June 15, 2012, or lawful immigration status expired before that date; (6) Are currently in school or graduated from school with a diploma or certificate of completion, or obtained a GED certificate, or be an honorably discharged veteran of the U.S. Armed Forces or Coast Guard; (7) Have not been convicted of a felony or significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. (www.uscis.gov, 2013) In addition, in order to apply for deferred action, the applicant must be at least 15 years of age (unless currently in removal proceedings or has a final removal or voluntary departure order,
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in which case the applicant may be younger than 15 years). The applicant must also have been under 31 years of age as of June 15, 2012 in order to apply. (www.uscis.gov, 2013) The Filing Process: The U.S. Citizenship and Immigration Services (USCIS)) website (http://www.uscis.gov) has an excellent page directed specifically to DACA (on the home page, there is a link under Humanitarian titled Consideration of Deferred Action for Childhood Arrivals Process). The eligibility requirements, as outlined above, can be found on this site, as well as the filing process including required documentation and the required forms. I strongly encourage any school counselor who works with undocumented students to become familiar with this website, and I will summarize some of the main steps of the DACA approval process, which can be found on this USCIS website. Students first need to gather a variety of documents that show the following: (1) proof of their identity; (2) proof they came to the U.S. before their 16th birthday; (3) proof of presence in the U.S. on June 15, 2012; (4) proof they resided in the U.S. continuously since June 15, 2007; and (5) proof of student status at the time of the request. If applicable, documents showing proof of honorable discharge from the military (not applicable for current students, but possibly for parents) or proof of immigration status may be required. (www.uscis.gov, 2013) Obviously, the document collection stage can be quite extensive; however, school counselors can provide valuable help in this regard. Appropriate documents to prove identity include school ID cards (with photo), and even an expired passport, provided it shows an admission stamp. School counselors can provide necessary documents, such as transcripts and

report cards, to show student status as well as additional proof of presence in the U.S. since June 15, 2007 and proof of U.S. presence before the students 16th birthday. Numerous documents must be produced to show continued presence in the U.S. since June 15, 2007. Generally, monthly documents, such as letters, dated bank transactions, and a variety of other kinds of dated receipts can be used. Attendance records, report cards, and letters to the students homes can all serve as valid proof, and, thus, the school counselor can be a valuable asset in this process. Once the necessary documents have been collected, the student needs to complete two forms and a worksheet, all of which can be downloaded from the USCIS website. Form I-821D is the Consideration of Deferred Action for Childhood Arrivals application, Form I-765 is the Application for Employment Authorization, and Form 765WS is the worksheet. The total filing fee is $465. The USCIS website provides useful tips for completing and filing the forms, as well as instructions for mailing. A note about traveling outside of the United States after August 15, 2012: When counseling undocumented students and their families, school counselors should advise that students not travel outside of the U.S. until the request for deferred action has been decided. If students had traveled outside of the U.S. prior to August 15, 2012, but the travel was brief, casual, and innocent, the continuous residence guideline was not necessarily violated, and thus the student may still obtain approval. If the student has traveled outside of the U.S. after August 15, 2012, but before the adjudication of the deferred action request, the student will not be considered for deferred action. The USCIS website discusses this requirement further. (www.uscis.gov, 2013)
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In view of the foregoing, it should be apparent that as school counselors in Florida, we quite likely have students and families who meet the application criteria for deferred status under DACA. It is therefore important for school counselors to understand these basic guidelines and provide this information. Legal aid clinics in Florida: There are several legal aid clinics in Florida to help all residents, regardless of legal status, on a variety of legal matters. Several centers in the state concentrate their services on immigration matters. The U.S. Department of Justices website, under its Executive Office for Immigration Review page, has links to free legal service providers for every state in the country. If one clicks Florida, a four-page listing of pro bono attorneys and legal aid clinics is generated. (U.S. Department of Justice, 2013) I have personally contacted one of the clinics in Ft. Myers, Florida: The Florida Equal Justice Center, Inc. This center provides legal services to clients in Lee, Hendry, Glades, Charlotte, and DeSoto counties. The center is staffed with Florida-licensed immigration attorneys as well as paralegals who provide counsel free of charge. By contacting these legal aid clinics, school counselors can collect brochures, checklists, and fee sheets (government fees and/or reduced attorney fees, if applicable) to give to their students and families. While the future of our undocumented children in this country remains uncertain, as school counselors we can still help by staying informed of current legislation on the federal and state levels and by providing information and resources (legal and social). The DACA process is a hopeful first step in providing some stability for these children, and school counselors can be instrumental in assisting undocumented students and their families as they navigate the process.
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References: Hoefer, M., Rytina, N., & Baker, B. (2012, March). Estimates of the unauthorized immigrant population residing in the United States. DHS Office of Immigration Statistics. Retrieved from http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf Plyler v. Doe, 457 U.S. 202 (1982) National Association of Secondary School Principals. (2011, May 6). NASSP position statement: undocumented students Retrieved from http://www.nassp.org/Content.aspx?topic=Undocumented_Students Napolitano, J. (2012, June 15). Memorandum: exercising prosecutorial discretion with respect to individuals who came to the United States as children. Retrieved from http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf Jacobs, G. (2012). Deferred action status for childhood arrivals online continuing legal education. Lawline.com CLE (New York) U.S. Immigration and Customs Enforcement. Removal statistics. Retrieved July 19, 2013 from http://www.ice.gov/removal-statistics/ Warley, M. (2012). Current Development : Developments in the executive branch: dream deferred: prosecutorial discretion allows deferred action for childhood arrivals. Georgetown Immigration Law Journal, 26, 461-465. Border Security, Economic Opportunity, & Immigration Modernization Act, S. 744, 113 Cong. (2013).
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U.S. Citizenship & Immigration Services. (2013, July 2). Consideration of Deferred Action for Childhood Arrivals Process. Retrieved at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnexto id=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310Vgn VCM100000082ca60aRCRD#guidelines United States Department of Justice (2013, July), Free legal service providers, Retrieved at http://www.justice.gov/eoir/probono/states.htm.