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DACA’s limitations need a cure. This is it.

Unfortunately, Deferred Action for Childhood Arrivals is only a temporary immigration status (“deferral of removal”) that the Department of Homeland Security granted in the exercise of prosecutorial discretion to those who came to the United States before reaching their 16th birthday and have continuously resided in the United States since June 15, 2007 up to the present time. See Citizenship and Immigration Services (CIS) site at https://www.uscis.gov/archive/frequently-asked-questions#what_is_DACA.

“An individual who has received deferred action is authorized to be present in the United States, and is therefore considered to be lawfully present during the period deferred action is in effect (generally 2 years).” Id.

However, this discretionary relief from removal “does not confer lawful status upon (a DACA recipient) nor does it excuse any previous or subsequent periods of unlawful presence,” thus Congress needs to provide a path to lawful permanent residence for DACA recipients and other long-term undocumented residents who came here before June 15, 2007, even if a judge “brings DACA back.” (c.f. The Day headline, December 5, 2020.

In its present form, section 249(a) of the Act can confer lawful permanent residence upon a successful applicant who entered the United States before “January 1, 1972,” which clearly is a useless obsolete date today that should be replaced by the date June 15, 2007 to accommodate longtime residents and “Dreamers.”

This suggested small fix to section 249(a) should be attractive to both parties in Congress because of its simplicity and the broad humanitarian relief accorded (with entitlement to a "green card"). Eligibility for U.S. citizenship would also follow in five years after gaining lawful permanent residence, or in three years thereafter if married to a U.S. citizen, under welcoming Citizenship and Immigration Services naturalization processes.

Robert Kim Bingham Sr. is a retired Immigration and Customs Enforcement attorney. He lives in Salem.

 

 

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