By Bryan Johnson
The Obama administration is ostensibly gearing up for comprehensive immigration reform while at the same time acting directly against the interests of immigrants.
On January 18, 2013, USCIS updated its “FAQs” on DACA.
The FAQs are put into quotes because there is at least one rule change dressed up as an FAQ.
USCIS’s update is by now widely known for its affirmation that DACA recipients are considered by DHS to be lawfully present in the United States. This was obviously spurred on by the fact that several states were denying DACA beneficiaries drivers licenses because they did not consider them to be lawfully present in the United States.
At first glance, USCIS’s updates seem to support DACA recipients against boogeyman anti-immigrant states like Iowa or Arizona. But on closer examination, there is a rule change that was designed to exclude the number of young immigrants eligible for DACA. Question and answer 1 under the heading Miscellaneous states:
New – Q1: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process?
A1: Yes, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process.
This caught my attention because one of our clients would not be eligible under this new rule change.
When the DACA requirements were first published, one only needed to show that one came to the United States before one’s 16th birthday.
In fact, question 13 on Form I-821D asks: Date of Initial entry into the United States. The form emphasizes the importance of the initial entry, not whether the applicant established residence after that initial entry.
Our client did not establish residence in the U.S. until after reaching her 16th birthday.
Under the rules at the time that our client applied, she qualified and received DACA. Under the new rules, she would not qualify for DACA.
Why did the Obama administration craft a new rule that restricts the amount of young immigrants eligible for DACA? Does Obama want to penalize young immigrants for having been lucky enough to have entered the U.S. for a vacation prior to their 16th birthday?
This new rule makes no sense and is anti-immigrant.
Snippet after snippet after snippet of evidence (De Osorio) reveals the Obama administration acting concretely against the same immigrants that he concurrently purports to want to include in a comprehensive reform package.
When all of the facts point one way, hope is useless. It is time to turn the other way–to abandon Obama–and find a new avenue for reform.
Bryan Johnson, Esq. is Partner at Amoachi and Johnson, PLLC, a New York law firm dedicated to the practice of U.S. Immigration Law.