By Parviz Malakouti-Fitzgerald, Esq.
Are you sure you know exactly what DACA is?
Maybe you’re an expert, or perhaps not.
Or maybe you know what it is but we can deepen your understanding. After all, knowledge is power right? At least that’s what Francis Bacon and some other important people from history said.
“DACA” stands for Deferred Action for Childhood Arrivals.
“Deferred Action” – deferred prosecution i.e. prosecuting LATER…or possibly not at all.
It was a program created by former President Barack Obama to give protection to SOME immigrants who came to the United States as children and have remained here since then.
By the way, DACA was created by Obama in the election year 2012. Suspicious minds might think that Obama established the DACA program, feeling pressured to do something to shore up his Latino voting base before the 2012 elections.
As the great Francis Urquhart might say:
"You might very well think that. I couldn’t possibly comment..."
(Francis Urquhart of the British House of Cards television series)
DACA was an act of prosecutorial discretion by former President Obama. Generally, the Executive Branch of federal government, headed by the President, Is responsible for prosecuting federal laws, in other words ENFORCING them.
In this context, "prosecution" means ENFORCEMENT of immigration laws - NOT necessarily putting someone in jail.
What DACA is NOT
Also, DACA is not the Dream Act! The “Dream Act’ is a generic term used for a number of pieces of failed legislation to get Dreamer on the path to legal permanent residency i.e. the “green card.”
A Dream Act must be passed by Congress. Remember Congress?
Congress makes the laws. The executive branch (headed by the President) enforces the laws. The court system (i.e. the judicial branch) decides arguments about what those laws EXACTLY mean.
Larry, Curly and Moe - the three branches of government in action.
The concept of “prosecutorial discretion” refers to the idea that oftentimes it is best for the United States for certain laws to NOT be enforced against certain individuals in some circumstances.
Wait - why on earth would laws be created to not then be enforced?
Aside from letting rich guys off the hook, there are actually many possible reasons.
In the case of DACA, the big reasons for this act of prosecutorial discretion were:
• Limited resources in immigration enforcement that incentivize prioritizing the removal of undocumented people who are a security threat;
• The fact that Dreamers who came to the country before the age of 16 generally had no say in the matter. How many eleven year olds are deciding on their own to move to another country?!;
• Lots of sympathy for Dreamers among the American public
DACA - "Authorized Period of Stay" (not Immigration Status)
It's often stated that DACA is not an immigration status, and this is true. This refers to the fact that DACA doesn’t give “lawful immigration status” to its recipients.
Say what?
Instead, DACA gives what is called “a period of authorized stay” to its recipients. This just means that DACA recipients are allowed to stay in the United States during the time that they have DACA, although they are NOT considered to have “immigration status.”
So what’s the difference between “immigration status” and “a period of authorized stay?” Here are a few analogies:
Think of it as someone letting you use their office BUT not letting you put your name on the door.
It's your buddy who’s welcome to stop by to visit BUT he doesn’t get a key.
Under immigration law, you have a period of authorized stay in the United States but not lawful immigration status. Furthermore, DACA recipients have a set of criteria they have to abide by in order to not lose DACA.
Make sense?
Those are two analogies to what “period of authorized stay” means. If you have DACA, that’s what you have.
“Immigration status” has a very particular meaning in immigration law. It’s a more beneficial position to be in than “period of authorized stay.” A person with "immigration status" has a lot more options available to get on a path to citizenship. This is because the U.S. immigration and nationality act ("INA") requires people to have "immigration status" in order to access a lot of permanent resident (green card) options.
If you've ever heard an immigration lawyer say "DACA isn't an immigration status", this is what they're referring to. We’ll go into this in more detail in a future article.
We’ll break down the importance of that difference, and we’ll do it in language that’s understandable. Stay tuned...
The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Each immigration case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps.