Understanding DACA: What It Says

| November 6, 2017 | 0 Comments

DACA was controversial on the way in, and it’s controversial on the way out. Morality, constitutionality, and simple human welfare all seem to be on line, but gray zones surround every part of DACA’s existence and legality. As a subject of argument and passionate belief between people from every different background, DACA is worth examining and deconstructing; as with anything, argument must start from understanding.

A very important disclaimer before we dive right in: I have no official legal training of any sort. All I do is read, interpret, and describe. I welcome any and all criticism, disagreement, and challenging concerning all of my writing – disagreement is the foundation of discourse, and discourse is what builds common ground.

So –

Just what was DACA?

The common impression that DACA was instituted through an executive order is inaccurate. It was a memo, sent by then-Secretary of Homeland Security Janet Napolitano on June 15, 2012. The basic function of any such memo, properly termed an “executive memorandum”, is to give explicit guidelines for the actions of executive agencies; it has no legislative implications and no hard-and-fast rules.

The key term of DACA, and the one that most clearly defines its meaning, is “prosecutorial discretion”. This is a term often used in legal contexts to describe situations in which law enforcement chooses whether or not to pursue a certain case. If you jaywalk in front of a police officer, for instance, you are definitely breaking a (minor) law and they are definitely observing you do so. If they decide not to ticket you, they have exercised favorable prosecutorial discretion (as well they might, because jaywalking is as much a part of this city as Dunkin Donuts). The jaywalking law still exists, however, and you’re still technically breaking the law.

The same is true of DACA. It did nothing to the immigration laws of the country. Napolitano did nothing more than encourage immigration officials to take into account several factors about undocumented immigrants before determining whether or not to prosecute. She described them as follows:

“The individual

  • came to the United States under the age of sixteen;
  • has continuously resided in the United States for at least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
  • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety;
  • is not above the age of thirty.”

There are several real-world meanings to prosecutorial discretion in an immigration context. First, Napolitano encouraged immigration officials not to go after people who meet the criteria – simple enough. For people already in or scheduled for official “removal proceedings”, deferred action comes into play. What deferred action means in a legal sense is putting a case on the backburner. The charges still exist, the offense is still prosecutable, but it will not come to trial during the period of deferred action unless unusual circumstances come up – if the person charged violates the criteria, for example. The DACA memo sets up a deferred action period of 2 years that is subject for renewal. Renewal, however, must be applied for; it’s a timed checkpoint that allows immigration officials to monitor immigrant behavior.

In some cases, DACA is given more credit than it is due; in others, its reach and effects are exaggerated. What DACA simply is, in sum:

  • an executive memorandum, not a piece of legislation
  • a call for prosecutorial discretion, not a requirement of one
  • a call for deferred legal action, not cancellation of legal action
  • a list of specific criteria, not a wide amnesty initiative

I am attaching two important pieces of information below. The first is the text of Napolitano’s memo, so you can read and interpret it yourself. The second is contact information for the Boston area’s ICE (Immigration and Customs Enforcement) department. You, like Janet Napolitano, have the power to urge officers to practice prosecutorial discretion. It is in times like these that we wonder how much power is denied us as citizens; it is in times like these that we are able to act. We do what we can.

DACA Memo: https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

ICE Boston Field Office: (781) 359-7500


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photo credit: mollyktadams Los Angeles March for Immigrant Rights via photopin (license)

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Category: featured, Politics, Social Activism

Lolo Serrano

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