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4/12/2015
Centre County Bar Association
CLE
DACA and DAPA: What You Need
to Know
April 13, 2015
By: Tulsi Patel and Jose Figueroa
The Center for Immigrants’ Rights
 Under the supervision of Professor Shoba Sivaprasad Wadhia,
clinical students participate in a range of activities including working
with national and local organizational clients in order to reach the
goals of those clients, individual case work, and conducting
community education events.
Disclaimer
 This presentation does NOT serve as legal
advice and serves as an general overall
outlook of DACA/DAPA.
 This is not a substitute for consulting the
Immigration & Nationality Act (INA), the
regulations, and the case law.
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Agenda
I. 2012 Deferred Action for Childhood Arrivals (DACA)
II. 2014 Expanded DACA
III. 2014 Deferred Action for Parents of Americans and
Lawful Permanent Residents (DAPA)
IV. Department of Homeland Security Priorities Memo
V. Texas v. U.S., 2015 U.S. Dist. LEXIS 18551 (S.D. Tex.
Feb. 16, 2015)
VI. Professional Responsibility
What is Deferred Action?

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A form of prosecutorial discretion
Temporary
Does not provide lawful status
Examples:
 DACA
 DAPA
Benefits of Deferred Action

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Ability to apply for work authorization.
Receive a social security number.
Receive healthcare.
Get a driver’s license (in some states).
Reestablishing trust in the community between
police officers and undocumented immigrants.
 The ability to not live in fear.
Source: http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-daca
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I. DACA
Photo by: Hispanically Speaking News
Deferred Action Timeline
Feb. 16, 2015
Judge Hanen
Injunction
June 15, 2012
DACA announced
Nov. 20, 2014
Expanded DACA &
DAPA announced
2012 DACA Requirements
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Under 31 years old as of June 15, 2012;
Came to the United States before 16th birthday;
Continuous residence since June 15, 2007, up to present;
Physical presence in the US on June 15, 2012 and on date of
application;
 No lawful status on June 15, 2012;
 Currently in school or graduated; and
 Not convicted of a:
 felony
 significant misdemeanor, or
 3+ other misdemeanors
Source: http://www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-daca
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Continuous Residence vs.
Physical Presence
 Continuous residence
refers to the ability to
prove that one has
continuously been in
the United States and
that any departure was
brief, casual, and
innocent.
 Physical presence refers
to the ability to show
that one was actually
here on June 15, 2012
and on the date of the
application for DACA.
Source: http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions
2012 DACA: What is a “significant
misdemeanor”?
 A misdemeanor as defined by federal law (for
which the max. term of imprisonment is 1
year or less but more than 5 days) and that
meets certain criteria.
Source: http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions
2012 DACA: When is “continuous
residence” broken?
 Unauthorized travel outside of the U.S. after
August 15, 2012 will interrupt continuous
residence.
 What departure is “brief, casual, and
innocent?”
Source: http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions
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Travel Dates
Type of Travel
Does it affect continuous
residence?
Between June 15, 2007 and
August 15, 2012
Brief, casual, innocent
No.
Between June 15, 2007 and
August 15, 2012
For:
Yes.
1. extended time
2. because of order of
exclusion, deportation,
voluntary departure, or
removal; or
3. To participate in criminal
activity
On/after Aug. 15 but before
request for DACA
Any type of travel
Yes.
On/after Aug. 15 but after
request for DACA
Any type of travel
Yes.
On/after Aug. 15 after
receiving DACA
Any type of travel
It depends on whether
granted advance parole.
Source: http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions
2012 DACA Hypothetical
 Fes was born in Argentina on
January 1, 1991.
 Parents brought to US in 2000,
when he was 9 years old.
 1 day trip to Mexico when he was
13 years old.
 Convicted of open lewdness, a
misdemeanor.
 Is he 2012 DACA eligible?
Photo by: Fan Pop
President Obama’s Executive Action - November 20, 2014
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Deferred Action Timeline
Feb. 16, 2015
Judge Hanen
Injunction
June 15, 2012
DACA announced
Nov. 20, 2014
Expanded DACA &
DAPA announced
II. EXPANDED DACA
2014 Expanded DACA
2012 DACA
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Under 31 years old as of June 15, 2012;
Came to the United States before 16th
birthday;
Continuous residence since June 15, 2007,
up to present;
Physical presence in the US on June 15, 2012
and on date of application;
No lawful status on June 15, 2012;
Currently in school or graduated
Not convicted of a:



2014 Expanded DACA
 All previous requirements
remain intact except for:
 Lived continuously in the US
since January 1, 2010
 There is no age cap.
felony
significant misdemeanor, or
3+ other misdemeanors
Source: http://www.uscis.gov/immigrationaction#daca
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2014 DACA Hypothetical
 Ricky Ricardo born in Mexico on
June 15, 1964.
 Brought to the United States
when he was 17.
 Arrested for a DUI.
 Wants to apply for expanded
Picture by: Word Press
DACA.
III. 2014 DAPA
2012 DACA ≠ 2014 Expanded DAPA
 The DHS interpretation of certain guidelines
and terminology from 2012 DACA may not
necessarily be the same for 2014 DAPA.
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Source:
http://www.nationalimmigrationproject.org/legalresources/practice_advisories/C
hart_DAPA_DACA_Bars.pdf
DAPA Requirements
 A Parent of an American or Lawful Permanent Resident
as of Nov. 20th, 2014;
 Lived in the US continuously since January 1, 2010; and
 Not an enforcement priority for removal under Nov.
20th Policies for the apprehension, detention, and
removal of undocumented immigrants memorandum.
 Presents no other factors that would make the grant of
deferred action inappropriate
Source: http://www.uscis.gov/immigrationaction#daca
IV. DEPARTMENT OF HOMELAND
SECURITY PRIORITIES MEMO
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Priority 1 (threats to national security, border
security, and public safety) Aliens:
 Engaged in or suspected of terrorism or
espionage; or who otherwise pose a danger to
national security
 Apprehended at the border or ports of entry
 Convicted of an offense classified as a felony in
the convicting jurisdiction
 Convicted of an “aggravated felony”
Source:
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutori
al_discretion.pdf
Felony in the convicting jurisdiction
Picture by: patheos.com
What is an “aggravated felony”?
“Aggravated felony” represents a wide range of
offenses that can be based on conduct or the sentence.
Conduct
Sentence
 Fraud where victim loss is
$10,000 or more
 Drug trafficking
 Firearm offenses
 Crime of violence and term of
imprisonment of at least 1
year
 Commercial bribery (with 1
year of imprisonment)
 Theft (1 yr. imprisonment)
Source: INA § 101(a)(43)
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Priority 2 (misdemeanants and new
immigration violators) Aliens:
 Convicted of 3+ misdemeanor offenses
 Convicted of a “significant misdemeanor”
 Apprehended for entry or reentry, on or
after January 1, 2014
Source:
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_pr
osecutorial_discretion.pdf
What is a “significant misdemeanor”?
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An offense of domestic violence;
Sexual abuse or exploitation;
Burglary;
Unlawful possession or use of a firearm;
Drug distribution or trafficking;
Driving under the influence;
An offense for which the individual was sentenced to
time in custody of 90 days or more (the sentence must
involve time to be served in custody, and does not
include a suspended sentence).
Source:
http://www.dhs.gov/sites/default/files/publications/14_1120_memo
_prosecutorial_discretion.pdf
Enforcement Priorities Cont.
 Priority 3 (other immigration violations)
 Aliens who have been issued a final order of
removal on or after January 1, 2014.
Source:
http://www.dhs.gov/sites/default/files/publications/14_1120_me
mo_prosecutorial_discretion.pdf
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Deferred Action Timeline
Feb. 16, 2015
Judge Hanen
Injunction
June 15, 2012
DACA announced
Nov. 20, 2014
Expanded DACA &
DAPA announced
V. TEXAS V. UNITED STATES
Richard Clemente
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Texas v. United States
 26 states filed a suit asserting that President
Obama overstepped his legal authority in his
November 20, 2014 Executive Actions.
 The District Court granted a preliminary
injunction of the programs halting expanded
DACA and DAPA (not 2012 DACA).
 DOJ filed an appeal and a stay on the injunction
to the 5th circuit.
Source: Texas v. United States, 2015 U.S. Dist. LEXIS 18551 (S.D.
Tex. Feb. 16, 2015)
Beth Werlin: Director of Policy at American
Immigration Council on Texas v. United States
Texas v. US: Recent Developments
 Argument on appeal of stay request in Fifth
Circuit Court set for April 17, 2015
 April 6th: Amicus Briefs filed to Fifth Circuit
 Mayors of NYC and LA submitted amicus brief in
support of Executive Actions
 Immigration Law Professors submitted amicus
brief supporting legality of Executive Actions
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VI. PROFESSIONAL
RESPONSIBILITY
Notario Fraud
 Make sure to advise clients to be aware of
notario fraud.
 Advise clients to find a licensed attorney to
submit their deferred action application.
Professional Responsibility and
DACA/DAPA
 Ethical Areas to Consider:
 Communication
 Rule 1.4
 Competence
 Rule 1.1
 Advertising
 Rule 7.1
Source: http://www.aila.org/practice/ethics/ethics-resources/ethicalconsiderations-executive-action
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Questions?
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