DHS provides background on DACA (Deferred Action for Childhood Arrivals)

Janet Napolitano

DREAM Act failure sets the stage. Senior government officials and other luminaries provided background on USCIS’s DACA initiative at the USCIS Ombudsman’s Second Annual Conference today in Washington. The Director of the Immigration Policy Center, Ms. Mary Giovagnoli, stated that with the failure of the DREAM Act in 2010, it became clear that there would be no comprehensive immigration reform out of Congress for a while. DHS then turned to streamline its procedures and build programs around the Secretary’s lawful discretion. The Deputy General Counsel of DHS, Mr. Seth Grossman, stated that DHS decided to focus its limited enforcement resources (i.e., ICE) on priority categories of removable aliens such as convicted criminals.

Focus on priority categories. As a result of the new DHS focus, ICE Director John Morton issued several memoranda to ICE, such as Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011). In November 2011, USCIS issued a Policy Memorandum to align its issuance of NTAs with DHS goals.

USCIS Director Alejandro Mayorkas

Defocus non-priorities. Mr. Grossman clarified that the “flip side” of focusing limited enforcement resources on priority cases is to defocus non-priority matters. ICE and USCIS began a case-by-case review of cases pending before immigration courts, based on enforcement priorities. DACA is another defocusing initiative, even though DACA requires USCIS to expend resources in the near term on DACA applications.

Future and longevity of the DACA program. Mr. Grossman viewed DACA as an exercise of Secretary Napolitano’s lawful discretion.  He added that USCIS Director Alejandro Mayorkas was firmly committed to DACA, and thus DACA was likely to continue so long as Secretary Napolitano and Director Mayorkas were in office. He would not speculate on the future of DACA beyond that. The Executive Director of the National Immigration Justice Center, Ms. Mary McCarthy, predicted a spike in DACA applications from November 2012 through January 2013.  She speculated that applicants would rush to get their DACA applications filed out of fear that DACA would be discontinued due to an adverse policy change after the November elections. Ms. Giovagnoli believed that DACA was a “tipping point in the national immigration dialog,” and that if elected, Romney might be “pushed” to keep DACA around anyway.

Design goals of the DACA program. The USCIS Chief of Staff, Ms. Rebecca Carson, identified three design goals of the DACA program: (1) operational flexibility; (2) a smooth customer experience; and (3) cost-revenue neutrality. For a smooth experience, USCIS offers a FAQ, an application receipt number, on-line case tracking, and application processing in 4 to 6 months. (Note that the processing time is extended for so long as USCIS waits for an applicant to respond to a request for additional or missing evidence.) To maintain cost-revenue neutrality, USCIS recovers its processing costs in application fees, because the EAD application is paired with the DACA application. Ms. McCarthy applauded the DACA program and the excellent FAQ posted on the USCIS website.  She suggested that DACA be used as a model for other USCIS initiatives.

Employment Authorization. Mr. Grossman and others opined that the EAD is a good document to possess for the typical DACA applicant, who wants to emerge from “the shadows.” An EAD reduces the potential for abuse that an undocumented alien might otherwise suffer. It also indicates that its holder is the beneficiary of deferred action from DHS. However, even though the DACA and EAD applications are paired, USCIS may in some cases grant DACA but not the EAD because the two applications are separately adjudicated.

DACA adjudication challenges. Ms. Carson added that proving “continuous residence” in the USA for the required period is the largest adjudicatory issue for DACA applications. Applicants should submit at least one relevant document for each year of residence to be proven. In response to a question from the audience, Mr. Grossman clarified that “fraud” as to a DACA adjudication generally meant fraud in the DACA application itself, and not past fraud, but this was not a bright line, and adjudicators would consider applications on a case-by-case basis.

Hot topics panel at the 2d Annual USCIS Ombudsman's Conference

(l to r) Mary Giovagnoli, Mary McCarthy, Rebecca Carson, Seth Grossman.