It appears that when the Obama administration said they will not share the information provided in Deferred Action for Childhood Arrivals (DACA) applications with ICE, what they really meant to say was they won't share your information UNLESS they decide to deport you.
Here is what I found in the recently updated USCIS DACA Frequently Asked Questions:
Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings UNLESS the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCISís Notice to Appear guidance (www.uscis.gov/NTA). [Emphasis added]
The link in the USCIS FAQ brings you to the November 7, 2011, policy memorandum that establishes criteria for consideration of whether an individual is an immigration enforcement priority that should be targeted for deportation. The memo specifically prioritizes the deportation of individuals that have been found to have committed fraud through the submission of an immigration application.
This policy has been reinforced in the DACA FAQ:
What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation, or knowingly fail to disclose facts (i.e., you leave something out that you think will result in the denial of your application), in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.
Fraud is not the only thing that may result in the institution of removal proceedings after the submission of a DACA application. The Obama administration has created a new term of art called a "significant misdemeanor."
It has been defined as follows:
Any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
- Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
- If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
Also be aware that just because you don't have a criminal record does not in any way prevent the Government from denying your application and sharing your information with ICE for the purpose of instituting removal.
They added the following catchall:
Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.
Translation: they can deny your DACA application and deport you if they decide to... and by the way, their decision is final.
So what does this mean? If you have a conviction, regardless of the seriousness (i.e., it has no immigration consequences), USCIS can deny your application and have ICE institute removal proceedings. Alternatively, even if you don't have a conviction, but have criminal charges that did not result in convictions, your DACA application may be denied in the exercise of discretion, and ICE may be notified for the purpose of instituting removal proceedings.
So here is the bottom line, when you are submitting a DACA application DO NOT be fooled into thinking that there is no chance that you will be deported. The fine print that keeps being added to the process clearly permits the institution of removal proceedings for almost any reason, or no reason.
I am not saying that you shouldn't submit a DACA application if you believe that you are both eligible, and a low priority risk. You can decide that for yourself after consulting an immigration lawyer that is experienced in deportation defense.
What I am saying is that anyone that tells you that there is no/minimal risk of deportation when applying for DACA is lying to you.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).