TBA Law Blog

Posted by: Christy Gibson on Sep 6, 2012

By Adrienne Kittos*

     On June 15, 2012, Secretary of Department of Homeland Security Janet Napolitano issued a memorandum regarding the exercise of prosecutorial discretion in cases involving certain individuals who arrived in the United States as children.  The process went into effect on August 15, 2012.

     Individuals whose requests are approved will receive a 2-year grant of deferred action, a discretionary decision by DHS not to pursue immigration enforcement. The policy does not grant lawful immigration status or lead to permanent residence. Those granted deferred action can receive employment authorization if they establish economic necessity for employment.

Basic Eligibility Requirements

     To be eligible for deferred action under this program, the individual:

1.     Must have been under the age of 31 as of June 15, 2012;

2.     Must be at least 15 years old when filing unless one is in removal proceedings;

3.     Must have come to the United States before reaching his 16th birthday;

4.     Must have continuously resided in the U.S. from June 15, 2007 to the present;

5.     Must have been physically present in the U.S. on June 15, 2012, and at the time of making his request for consideration of deferred action with USCIS;

6.     Must have entered without inspection before June 15, 2012, or lawful immigration status must have expired as of June 15, 2012;

7.     Must be currently enrolled in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or have been honorably discharged from the Coast Guard or Armed Forces; and

8.     Must not have 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.

Potential Risk

     USCIS has said that the information gathered as part of the application process is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement, unless the requestor meets the criteria set forth in USCIS’s Notice to Appear Guidance. The information can be shared with law enforcement agencies, including ICE and CBP, for other purposes, including investigation or prosecution of criminal offenses, for purposes of national security, and to identify fraudulent claims. This policy will also cover family members and guardians of requestors. However, USCIS has stated that the policy may be modified, superseded, or rescinded at any time, and does not create any substantive or procedural right or benefit.

     There is also the possibility that a change in policy might make the deferred action protection unavailable in the future (i.e., if Mitt Romney were elected and decided to discontinue Deferred Action). Because DACA does not lead to lawful status or permanent residence, requestors should be aware of this possibility.

     Attorneys should talk with their clients about the potential risks involved in making a request for DACA; particularly for a person who might fall within one of USCIS’s NTA criteria, available at: www.uscis.gov/NTA. Clients should also be aware that USCIS intends to treat requestors who knowingly make a misrepresentation or fail to disclose facts as an immigration enforcement priority to the fullest extent permitted by law.

Entry and Physical Presence Requirements

     In addition to having entered the United States before their 16th birthday, requestors must demonstrate that they were continuously present in the U.S. from June 15, 2007 through the present, they were physically present in the U.S. on June 15, 2012, and at the time of their DACA application. They cannot have traveled outside the U.S. since August 15, 2012.

     Continuous residence in the U.S. may have been broken by a brief, innocent, and casual absence from the country. In determining whether an absence was “brief, innocent, and casual,” USCIS will look at whether the length of the absence was reasonably calculated to accomplish the trip’s purpose, and whether the individual’s purpose and/or actions outside the U.S. were contrary to law. The absence cannot have been the result of an order of removal, exclusion, deportation, or voluntary departure.


     On the date of the application, the requestor must 1) be enrolled in a public or private elementary, middle, or high school; 2) have graduated from or completed high school; 3) have received a GED; 4) be enrolled in an educational program intended to assist students in obtaining a high school diploma or equivalent, or in passing a GED or equivalent exam;  or 5) be enrolled in an education, literacy, or career training program designed to lead to post-secondary education, job training, or employment.

     Students enrolled in GED prep or job-training programs will need to demonstrate either that the program is funded, in whole or in part, by federal or state grants, or that it is administered by a provider of demonstrated effectiveness. The burden will be on the requestor to show the program’s effectiveness, which they can do by submitting proof of how long the program has been in existence, its track record in assisting students in meeting its objectives, and any other indicator of the program’s quality.

Criminal Issues

     For purposes of the DACA request, a felony will include any federal, state, or local crime that is punishable by imprisonment for a term that exceeds one year. State law immigration crimes, whether categorized as felonies or misdemeanors, will not be treated as disqualifying felonies or misdemeanors in the process.

     A significant misdemeanor is any misdemeanor (a crime for which the maximum term of imprisonment authorized is one year or less, but greater than five days) that meets one of the following two criteria:

-Regardless of sentence imposed, an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or

-Regardless of the type of offense, an offense for which the individual was sentenced to time in custody of more than 90 days. This does not include a suspended sentence, or time in custody pursuant to an ICE detainer.

     A non-significant misdemeanor is any misdemeanor which does not also meet one of the criteria for a significant misdemeanor. Three or more non-significant misdemeanors, not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, will make the individual ineligible for deferred action under DACA, except in exceptional circumstances.

     Minor traffic offenses, such as driving without a license, will not be considered misdemeanors for purposes of the DACA process, and expunged and juvenile records will not automatically disqualify the requestor. A juvenile who was tried and convicted as an adult will have the conviction considered in the same way as any other adult conviction. The USCIS can consider the entire criminal history along with other facts to determine whether the requestor warrants an exercise of prosecutorial discretion.

DACA Request

     Requestors must fill out Form I-821D, Form I-765 - Application for Employment Authorization, and the new Form, I-765WS, which establishes the applicant’s economic necessity for employment.  The fee for the application, including biometrics, is $465, and a fee waiver is not available, though a fee exemption is available in limited circumstances. The exemption must be approved before the requestor can submit his DACA request without a fee.

After filing

     In the event of a denied DACA request, the requestor cannot file a motion to reopen or reconsider, or appeal the decision. A review can only be requested if the denial was based on abandonment of a claim, though the requestor did respond to a Request for Evidence by the deadline, or if USCIS mailed the Request for Evidence to the wrong address, though the requestor had kept his address up-to-date with USCIS.

For More Information

     USCIS has published an extensive list of Frequently Asked Questions, available at:



*Adrienne Kittos is the Regional Attorney for Tennessee Justice for Our Neigbors (TN-JFON). She received her law degree from Vanderbilt University Law School in 2009 and her undergraduate degree from Vanderbilt University in 2006. During law school, Mrs. Kittos gained experience in the immigration field through work at the Tennessee Coalition against Domestic and Sexual Violence Immigrant Legal Clinic and the Rose Immigration Law Firm. She joined TN-JFON through Vanderbilt's Public Interest Stipend Program in the fall of 2009. Mrs. Kittos may be reached at adrienne.tnjfon@gmail.com or (615) 823-1945.