Many people are misinformed and confused about U.S. immigration law and policy. Misunderstandings among large numbers of people may contribute to the recent increase of undocumented children, and families arriving on U.S. soil primarily from Guatemala, Honduras and El Salvador. Some of the people crossing the border are fleeing deadly conditions in their native countries and have little expectation other than survival once arriving in the U.S. Other people may incorrectly believe false propaganda about immigration law and policy in the U.S. American Citizens watching the news may be just as confused as politicians play the blame game, pointing fingers at one another for failing to pass immigration reform and for allegedly encouraging the influx of recent children arriving on U.S. soil. Common misconceptions about the complex immigration system involve the policy of Prosecutorial Discretion; Deferred Action for Childhood Arrivals, Asylum, Withholding of Removal and Protection under the Convention Against Torture (“Asylum”), and a lesser-known option called Special Immigrant Juvenile Status.
Many people falsely believe the policy of “Prosecutorial Discretion” gives new arrivals a safe haven.
Prosecutorial Discretion is a policy, not a law, that the Department of Homeland Security (“DHS”) announced, which directs Immigrations and Customs Enforcement (“ICE”) to focus on arresting and detaining undocumented immigrants charged with serious crimes and who generally pose a security risk. The purpose of the policy is to encourage general law-abiding individuals to participate in a path to legal status and/or citizenship without fear of leaving the house because ICE might deport them. What is important to understand is that prosecutorial discretion is a policy, and ICE may still detain and deport any individual who is not in the U.S. legally. Prosecutorial discretion is not a policy designed to protect the recently arriving immigrants from Central America. To learn more, read our article, Prosecutorial Discretion in Immigration Enforcement.
Deferred Action for Childhood Arrivals (“DACA”) is not available to recently arriving immigrants.
The word on the street among people, who are somewhat familiar with immigration law and policy, is that the DACA policy will apply to children arriving on U.S. soil on any given day. This is not the law. DACA guidelines under the current law and policy as listed below, DO NOT APPLY to currently arriving undocumented immigrants. For more information about DACA, please read our article, USCIS announces DACA renewal process: First time applications are also accepted.
The guidelines for requesting DACA are as follows[i]:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Had no lawful status on June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The Special Immigrant Juveniles (“SIJ”) Status is a limited program for children.
Foreign children in the U.S., who are victims of abuse and neglect, and worse, abandonment, may qualify for a green card. Critics of immigration policies often incorrectly assume that children apply for legal status and green cards solely for bringing the rest of the family to the U.S. Some people even suggest some applicants for relief lie about their life status or condition to get an approval for the benefit of their other family members. The SIJS program, however, excludes parents and siblings. This is another example of immigration relief that is limited in scope. If an individual obtains a green card through SIJS, they would only be able to petition for a green card for brothers and sisters if the SIJ participant becomes a U.S. citizen[ii].
Chicago immigration attorney, KiKi M. Mosley frequently hears misconceptions about immigration law and policy and she works diligently to inform the public about the real law and policy available to applicants for immigration relief.
Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues including DACA and related options for children arriving in the U.S. For more information about the law firm, please visit www.KiKisLaw.com, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter. You can also review Attorney Mosley’s endorsements on her Avvo profile.
[i] USCIS website: Consideration of Deferred Action for Childhood Arrivals (DACA).