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Chaparral 2016-2017: 25.1 Immigration Relief for the Undocumented Student

Immigration Relief for the Undocumented Student (September 2016)

Immigration Relief for the Undocumented Student

By Jason J. Schwartz, Ph.D., Esq.

Adjunct Faculty, Chemistry Department

Have you ever wondered how you can help your students who came to the United States (U.S.) illegally as children, to live and work legally in the U.S., without fear of being sent back to their country (in the process known as a removal proceeding, formerly known as deportation proceedings)?    Tell them about the program known as Deferred Action for Childhood Arrivals (DACA). 

On June 15, 2012, under a directive from President Barack Obama, the Secretary of the U.S. Department of Homeland Security issued a memorandum describing the program known as DACA.[1]  Under this program, individuals who meet certain requirements will have relief from being removed from, and will be able to legally work in, the U.S. in two year, renewable, increments.

In order to qualify under this program, the individuals must[2]:

  1. have come to the United States before reaching their 16th birthday;
  2. be under the age of 31 as of the date of the Secretary’s memorandum (June 15, 2012);
  3. have continuously resided in the U.S. since June 15, 2007, up to the present time;
  4. have been physically present in the U.S. on June 15, 2012, and at the time of making their DACA request;
  5. have no lawful status on June 15, 2012;
  6. be 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 U.S.; and
  7. have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The U.S. Citizenship and Immigration Service (USCIS) website specifically defines the terms “felony”, “significant misdemeanor” and “misdemeanor”.  Moreover, examples of documents that can be used to prove physical presence and continuous residence include, but are not limited to, school transcripts, medical records, military records, birth certificates of children born in the U.S., rental agreements, utility bills, passport entries, and employment records if working.  If the applicant does not have sufficient documentation of continuous residence for one or more periods of time, affidavits from individuals, such as neighbors, friends, priests, ministers, etc., with personal knowledge of the time that the applicant has been residing in the U.S. may be submitted.

On November 20, 2014, President Obama signed an executive order to expand the DACA program. In addition to meeting all the other DACA guidelines, the expanded program would have extended the period of deferred action and employment authorization to three years; would have allwed an individual to be eligible for DACA if they lived in the U.S. continuously since at least January 1, 2010, instead of June 15, 2007; and, would have removed the requirement that the individual be under the age of 31 as of the date of the Secretary’s memorandum discussed above.  The expanded program was to go into effect on February 18, 2015.

However, more than half of the states in the U.S., led by Texas, filed a lawsuit in a federal court to block not only the expanded DACA program, but another program that would have benefited undocumented parents of U.S. citizens and legal permanent residents.  On February 16, 2015, the federal court issued a preliminary injunction which blocked implementation of the expanded DACA program.[3]  A government appeal was unsuccessful, so a further appeal was made to the U.S. Supreme Court.  The Supreme Court’s decision resulted in a 4-4 tie, which effectively continued to block the expanded program.[4]

Although the 2012 DACA program is still in effect as of the time of publishing this article, its future remains unclear.  Whenever a change in administration occurs, various programs that are currently in place can be changed or eliminated. 

Feel free to contact my law office at (323) 383-4378, or through my website at www.jjschwartzlaw.com, with any questions you or your students may have about this, or any other, immigration topic.[5]

 

 

[1]Memorandum, Janet Napolitano, U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).

[2]Consideration of Deferred Action for Childhood Arrivals (DACA), USCIS.  Retrieved September 16, 2016 from https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[3] Texas v. United States, 86 F.Supp.3d 591 (S.D. Texas 2015)

[4] United States v. Texas, 579 U.S.___(2016)

[5] Please note that this article is for informational purposes only.  It is not, nor is it intended to be, legal advice, and does not create an attorney-client relationship.

 

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