This is part two in a series of articles on deferred action.
(Part one covered timing considerations for deferred action renewals.) You may have heard that a federal judge in Texas blocked the newest version of deferred action, the protection from deportation and work authorization program that the Obama administration has offered to certain groups of undocumented people. The injunction put in place by the Texas judge is temporary, however, and it is very likely a court of appeals will lift the injunction in the coming weeks or months. Deferred action is here to stay, and this article is to explore the interplay of deferred action and international travel.
Background Definition – Defer What?
Deferred action is really a form of resource planning for the government. With the Deferred Action for Childhood Arrivals (DACA) program, announced in June 2012 by President Obama to benefit undocumented young people who are “Americans in their heart, in their minds, in every single way but one: on paper,” the government gets to more easily target agency funding on high priority enforcement matters. Deferred action protects low priority law-abiding people from deportation while freeing up resources for things like fraud and terrorism investigations.
What does travel have to do with prosecutorial discretion?
Travel is an important feature of deferred action, both in terms of analyzing who is eligible for deferred action and because travel permission is available to applicants whose deferred action has been granted. In a future article we will explore the future implications of obtaining deferred action and traveling with permission.
Basic rules of DACA eligibility.
DACA requires that an applicant: 1) have entered the United States before age 16; 2) have been born after June 15, 1981; 3) have been continuously residing in the U.S. since June 15, 2007; 4) were physically present and not in valid immigration status on June 15, 2012; 5) has graduated from high school or obtained a GED or is currently studying in the U.S., and 6) does not have a serious or extensive criminal background or otherwise pose a threat to public safety. Once a DACA case is granted, the applicant receives a three-year work permit and protection from deportation.
Changes to the Basic Rules of DACA eligibility under Expanded DACA: The federal judge in Texas who granted an injunction against DACA expansion did not block deferred action completely. He left the above rules in place. On November 20, 2014, President Obama announced an expansion to the DACA program, along with a sister program, DAPA (Deferred Action for Parents). We are still waiting for detailed information about DAPA, and that program was scheduled to begin in May 2015. Expanded DACA was to take effect starting February 18, 2015.
Expanded DACA, once it is unblocked, will
- Eliminate the age limit in the original DACA program. That means as long as an applicant was brought here before reaching 16, even if he is now 36 years old, he could still qualify.
- Extend eligibility to applicants who began living in the United States as far back as January 1, 2010 (instead of June 15, 2007).
How Previous Travel Affects DACA Eligibility
Some DACA applicants arrived in the U.S. as toddlers and have never left. Travel does not affect eligibility for those applicants. But some applicants may have left the U.S. after their initial entries, and the immigration service has told us which applicants are DACA-eligible despite travel. Following is a series of questions and answers to demonstrate the travel rules for DACA:
Question. I came to the U.S. before I turned 16, and lived here for a couple of years, then went back to my home country, and returned to the U.S. in February 2007. I have not left the U.S. since then. Am I DACA-eligible?
Answer. Yes, because you first resided in the U.S. before age 16 and meet the residing since June 15, 2007, rule.
Question. I came to the U.S. at age 10 in 2009, and have never left. I am 15 years old. Am I DACA-eligible?
Answer. You will be eligible to apply for expanded DACA once the injunction is lifted, but cannot apply yet.
Question. I came to the U.S. as a small child and have always resided here, but in 2011 my parents took me abroad to go to my grandmother’s funeral. We came back after only three weeks. Am I DACA-eligible?
Answer. Yes, because the trip took place before August 15, 2012, and because it was such a short trip it should be considered “brief, casual and innocent.” You can use travel receipts and/or affidavits from other people with first-hand knowledge to demonstrate the duration of the trip. Immigration service guidelines define the phrase “brief, casual and innocent” as follows:
If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before August 15, 2012, and:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation or removal;
3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and
4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.
Question. I was in removal proceedings, and in the end I went outside the U.S. with my family in 2008 after we accepted voluntary departure in front of the immigration judge. We came back to the U.S. about a month later. Am I DACA eligible?
Answer. No, your departure was caused by an order of voluntary departure and this interrupted your continuous residence for DACA purposes.
Question. I believe I am eligible for DACA and want to apply soon. Will I still be eligible if I travel to another country and return to the U.S. without permission before I apply for DACA?
Answer. No, the government has clarified that any travel without permission on or after August 15, 2012, will render you ineligible.
Question. I applied for DACA and was approved. Then I travelled outside the U.S. without a travel document. Am I DACA renewal eligible?
Answer. No, to be eligible to renew DACA after travel abroad, you would have had to have obtained a DACA advanced parole document first. In addition, if a person with DACA travels abroad without a travel document, his or her deferred action is automatically terminated.
New Travel Rules in Expanded DACA
Under expanded DACA, which will go into effect once the Texas federal judge’s injunction is lifted by the Court of Appeals, some important dates as to travel will change.
- In the future, under expanded DACA, any travel without permission on or after January 1, 2014, will render applicants ineligible (this date is currently set at August 15, 2012)
- If an applicant was absent from the United States after initially establishing residence here, the absence may be considered brief, casual and innocent if it was on or after January 1, 2010, and before January 1, 2014 (as opposed to June 15, 2007 through August 15, 2012).
- Under expanded DACA, a person who is eligible for deferred action will be able to file for deferred action protection from deportation, work authorization, and travel authorization all at the same time. The concurrent filing rule is not in effect for now. More below.
How to get a DACA travel document
Even under the “old” DACA rules, young people who have obtained deferred action can apply for permission to travel abroad and come back to the U.S.
When to Apply
People who already have DACA can apply. People who have already requested DACA, but have not yet been approved, need to wait until DACA is approved. Requesting travel permission concurrently will become an option available under expanded DACA. This means DACA registrants will be able to include a DACA travel application together with their DACA applications. The travel authorization will not be decided until after DACA is approved, but this will still make for much quicker issuance of travel documents than in the past.
Acceptable reasons for DACA travel
The immigration service has decided not to authorize travel for vacation. Rather, there are three kinds of purposes that may serve to justify DACA travel authorization, as follows.
- Work. If the employer of a DACA registrant needs the employee to represent the company at a conference abroad, or in meetings with clients in another company, this can serve as the basis for a DACA travel document application. Other examples given by the immigration service include “overseas assignments, interviews” and training.
- School. The immigration service expects that many DACA registrants are continuing their education at post-secondary institutions around the country. Many of these colleges and universities offer study abroad programs as a way to learn foreign languages in an immersion setting or simply to broaden students’ horizons. I know for me, the semester I spent studying abroad in Costa Rica was one of the most important experiences of my young life. DACA registrants can obtain travel authorization for semester-abroad programs or academic research.
- Humanitarian. Visiting family is not alone a purpose that justifies DACA travel authorization, according to the government, but visiting relatives with medical problems may be. Travel may also be authorized to obtain medical treatment or attend the funeral of a family member.
What if I have a Removal / Deportation Order?
Anyone who has been ordered removed or deported by an immigration judge needs to take care of the deportation order before leaving the U.S., even if she already obtained a DACA travel document.
Effect of departing with removal
If a person with a removal order that is outstanding leaves the country, he executes his own removal. The deportation is carried out by the DACA registrant himself. If he already obtained a DACA travel document, this does not necessarily mean he will not be able to return to the U.S. in the short term, but could have future consequences.
What to do about a removal order?
A person with an approved DACA application who would like to travel abroad should first move the immigration judge to reopen the removal proceedings against her and seek termination of those proceedings. An immigration attorney can first approach the Immigration and Customs Enforcement (ICE) attorney representing the government in removal proceedings (like an immigration court prosecutor) to join in the motion to reopen.
Other kinds of deferred action
Deferred action has been around for decades, as every President has used this tool to expand protection from deportation to different groups left out of the loop by Congress. For example, victims of domestic violence at the hands of U.S. citizen spouses have long received deferred action while waiting for their permanent residence cases to be decided. President Reagan extended deferred action to certain family members of people who achieved permanent residence through the 1980’s amnesty law.
In November 2014, President Obama announced DACA expansion as well as deferred action for parents (DAPA) of U.S. citizens and lawful permanent residents. This program is slated to begin in May 2015, although it remains to be seen what impact the Texas lawsuit will have on the timing. Travel rules for DAPA have not yet been announced. We believe the travel rules will be similar under DAPA as for expanded DACA, such that much of this same analysis will apply.
Plan in Advance for Travel Abroad
DACA registrants can certainly enjoy travel outside the United States, but obtaining travel authorization requires careful planning in advance. It may take six months or more to obtain a travel authorization document after planning the work conference, study abroad, or after learning about an ailing relative who needs personal assistance abroad. Once expanded DACA is in place, with its concurrent travel authorization filing rule, applicants should be able to more accurately predict future dates of travel, as well. Anyone who needs expanded DACA to apply for protection from deportation and work authorization should watch the news carefully and keep preparing to apply.