In 2012, the federal government implemented DACA, a legal act for individuals who came to the United States as minors and met specific criteria. DACA provides deferred action for two years and can be renewed after that.
Deferred action is a form of prosecutorial constraint in which undocumented immigrants are not removed from the U.S. or deported when they qualify for the deferred action. Suppose a person qualifies for relief under DACA. They may be eligible for work authorization, but the relief does not deliver legal status in the U.S., so DACA is not a path to permanent residency or U.S. citizenship.
What Is Removal / Deportation?
Removal (previously called deportation) happens when the United States government decides that a foreign-born individual should no longer be in the United States and lawfully removes that individual from the United States.
Regulating Removal / Deportation
Before September 2002, the agency tasked with overseeing immigration issues was the Immigration and Naturalization Service (INS). In September 2002, Congress passed, and President Bush signed, the Homeland Security Act, moving the authorities of the INS to the Department of Homeland Security. The immigration service functions of the INS are now established under the Bureau of Citizenship and Immigration Services (BCIS).
Exclusion vs. Deportation
Exclusion is determined when a foreign person seeks entry into the United States. Therefore, you can potentially be excluded from consideration when attempting to get a green card, a visa, or cross the border. If the United States has decided that you should be excluded, you cannot try to re-enter the U.S. for at least one year. It is a felony offense if you re-enter before the end of that year. You must also acquire authorization from the BCIS before re-entering.
A person already in the United States is potentially subject to removal or deportation. A person here illegally or without a valid visa or green card can be deported. If you have been deported, you cannot gain re-entry into the United States for at least five years. It is a felony if you re-enter before the end of the five years. You must also obtain permission from the BCIS before you re-enter.
Reasons for Deportation or Exclusion
Because staying in the United States is a privilege and not a right for non-citizens, the United States government can push an individual to return to their home country for several reasons, such as:
- Committing fraud or misrepresenting a material fact to obtain a visa, green card, etc.
- Being convicted of a narcotics crime (Note: possessing a very small amount of marijuana may be an exception to this rule).
- Being convicted of murder, unlawful trafficking of firearms, money laundering, or a crime of violence that carried a sentence of 5 or more years. An attempt or conspiracy to perpetrate these offenses is also grounds for deportation.
Stopping Removal / Deportation
If you have been served with an order for deportation proceedings, you still may be able to remain in the United States. There are several different ways you can seek relief from deportation. Some methods for relief from deportation include:
- Suspend deportation: A deportable alien must be continuously and physically present in the United States for at least seven years, be of good moral character, have a religious reason, or demonstrate that if deported, this would cause undue hardship on the alien or the family.
- Asylum: Asylum may be granted to people who have been persecuted or who fear future persecution in the home country because of race, nationality, religion, political belief or opinion, or membership in a particular social group
- Withholding of deportation: Withholding of deportation can happen for reasons analogous to granting asylum. Unlike people granted asylum, however, an individual granted withholding of deportation cannot apply for permanent residence and can be deported to a different country than the home country.
- Voluntary departure: Voluntary departure is usually granted by an immigration judge after an order of deportation for an individual who seeks to leave willingly instead of forced deportation.
- Other methods: Check with your immigration lawyer to discuss the possible strategies appropriate for your situation.
Recent Changes to DACA
In September 2017, the DACA act was repealed by Congress. Nevertheless, a recent injunction in January 2018 by federal court order has authorized the United States Citizenship and Immigration Service (USCIS) to continue receiving petitions from people renewing their DACA status.
What Is United States Citizenship and Immigration Services (USCIS)?
The United States Citizenship and Immigration Services (USCIS) is a United States Department of Homeland Security sub-agency that administers immigration and naturalization in the United States. USCIS processes all citizenship and visa applications.
This includes determining whether or not to grant citizenship and visa applications. The USCIS also judges decisions regarding different petitions and claims.
The USCIS is also liable for protecting national security and for working to stop backlogs in immigration. USCIS is a worldwide network with 250 offices that employ 18,000 government employees and contractors.
What Are the Functions of USCIS?
The USCIS has many functions. The USCIS is responsible for:
- Processing immigrant visa petitions;
- Processing naturalization petitions;
- Processing asylum applications;
- Processing refugee applications;
- Allocating immigration services and benefits;
- Administering employment authorization documents;
- Giving legal permanent resident status;
- Granting U.S. citizen status; and
- Judging petitions for non-immigrant temporary employees.
The USCIS is also charged with conducting all of these procedures with constant advances in the efficiency of these tasks.
Who Is Eligible for DACA?
Eligibility requires the following:
- The petitioner came to the United States before reaching their 16th birthday.
- They have continually lived in the United States since June 15, 2007, when they are applying for the deferred action.
- They were physically present in the United States on June 15, 2012, and when they applied for the deferred action.
- The individual had no legal status on June 15, 2012.
- The individual must not pose a threat to national security or public safety.
- In resolving whether the individual poses a threat, a person convicted of a felony, a significant misdemeanor, or three or more other misdemeanors disqualifies the applicant.
- One of the following statuses must apply to the petitioner:
- Presently in school;
- Graduated or received a certificate of completion from high school;
- Have received a general education development (GED) certificate; or
- Is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
How Do I Apply for DACA?
In applying, several documents may be needed to establish one’s identity and presence in the U.S. After collecting these records, follow these steps:
- Complete USCIS Form I-765, I-765 Worksheet, and I-821D.
- Submit the forms by mail, including fees
- Schedule and conduct a biometrics appointment at your local USCIS application center.
Do I Need a Lawyer to Apply for DACA?
Immigration laws frequently change in the United States, and the DACA program is changing. Therefore, a qualified immigration lawyer is recommended to assist you with your DACA petition and any other immigration options available to you.
Use LegalMatch to start resolving your immigration issues today. There is no fee to schedule a consultation with an expert immigration lawyer in your area. Let an experienced lawyer on LegalMatch help you now.