The DREAM Act and the Legal Origins of DACA Protections
The DREAM Act, also known as the Development, Relief, and Education for Alien Minors Act, is bipartisan legislation that addresses the problem of young individuals who grew up in the United States and graduated from high school but do not have any legal status in the U.S. under the immigration laws. These young individuals generally come to the U.S. with parents who are undocumented or in immigration limbo. Under the Act, certain individuals can receive conditional permanent residency if they are of good moral character, graduated from high school, arrived in the U.S. as minors, and have lived in the U.S for at least five consecutive years prior to the bill’s enactment.
While the DREAM Act was proposed years ago, Congress has not yet passed it. In order to address this issue, the Obama administration came up with the “Deferred Action for Childhood Arrivals” (DACA) program, which allows individuals to seek protection from deportation in two-year increments. The DACA program is administered by the Department of Homeland Security (DHS) and is designed to permit individuals who did not intentionally violate immigration laws to stay in the country. This program is available to persons who would otherwise qualify for the DREAM Act.
The process begins by filing a request with United States Citizenship and Immigration Services (USCIS). To be eligible for deferred action, a person must fulfill the following criteria:
- The individual was under 31 years of age as of June 15, 2012;
- The individual entered the United States when he or she was younger than 16 years of age;
- The individual resided in the United States continuously for at least five years;
- The individual is currently enrolled in school, has obtained a high school diploma or its equivalent, or has served in the U.S. Armed Forces; and
- The individual has committed no felonies or other serious crimes.
When an individual files for DACA eligibility, he or she must provide documentation establishing the criteria listed above. This could include paperwork such as financial, medical, educational, and employment records. The burden to show that all the criteria are fulfilled is on the individual seeking protection under the program.
If an individual’s case is deferred, that person does not accrue unlawful presence in the U.S. during the period of deferred action. Deferred action, however, also does not confer any lawful status either. Deferred action does not provide the individual with a path to lawful permanent resident (LPR) status or citizenship.
It is not possible to appeal a USCIS determination when it comes to the DACA program. An individual whose request is denied may not file a motion to reopen or reconsider the matter. USCIS will not review its own decision. However, an individual may request a review using the Service Request Management Took (SRMT) in very specific circumstances. These are if USCIS denied the request due to abandonment and the individual claims that he or she did provide the relevant evidence within the prescribed time, or if USCIS mailed the Request for Evidence to an incorrect address despite the fact that the individual had submitted a form with the appropriate address.
