The Rights Of Undocumented Children And Youth

Children Under Deferred Action on Childhood Arrivals (DACA)

Some undocumented children and youth are entitled to protections that effectively place deportation actions on hold. In 2012, the Secretary of Homeland Security announced that some undocumented immigrants who had been brought to the United States as children would be granted deferred action on their immigration status (i.e. they would be protected from deportation for a limited period) if they met other criteria concerning their conduct, age, and presence in the U.S.

The program allowed undocumented immigrants to request DACA protection if they:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching their 16th birthday;
3. Continuously resided in the U.S. from June 15, 2007, up to the time of making the request;
4. Were physically present in the United States on June 15, 2012, and at the time of requesting consideration of deferred action;
5. Had no lawful immigration status on June 15, 2012;
6. Were in school, had graduated or obtained a high school certificate of completion or a GED certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States at the time of the request; and
7. Had not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

While there have been periodic suggestions that new undocumented immigrants are coming to the U.S. to take advantage of the DACA program, DACA is available only to undocumented immigrants who were in the U.S. as of June 15, 2012. The program offers recipients a two-year respite from deportation proceedings; if they want protections to continue, recipients must reapply every two years.

In September 2017, the Justice Department formally announced an end to DACA,which had been implemented by executive action, and gave Congress a six-month deadline to take action on the status of current DACA recipients in the U.S. This announcement means that no new applications for the DACA program will be considered. However, the policy remains in effect, at least for those who have received DACA protection previously. While U.S Citizenship and Immigration Services is no longer accepting new applications for deferred action, the agency continues to accept applications for renewal. Despite confusion over the continued vitality of DACA, undocumented immigrants who are currently eligible for its protections should continue to apply for deferral.

Undocumented Children in School

While undocumented children in the U.S. are subject to certain stresses because of their status, they also enjoy certain rights. All children in the U.S. are entitled to free public education, regardless of their own immigration status or the immigration status of their parents or guardians, a principle supported by both case law and policy. In 1982, the Supreme Court held that a state could not deny funding for education for undocumented children. A 2014 Department of Education policy established that, while schools may require proof that the child lives within the school district, they cannot require proof that the child, or the child’s parents, are citizens. A school may not prevent a child from enrolling if the child does not provide the school with a birth certificate, social security number, or information about the child’s race or ethnicity. Further, ICE has a non-binding policy identifying schools as “sensitive locations” that cannot be the site of arrests.

Undocumented children have incentives to attend school – evidence of enrollment or a high school diploma (or its equivalent) have been considered in granting deferred action status under DACA. But while federal law has, in general, protected school-age children from the dangers and stigma of undocumented status, states have attempted to pass laws that identify children who are in the U.S. illegally. In 2011, Alabama passed HB 56, which (among other provisions) requires schools to determine the immigration status of school children at the time of enrollment. Federal courts have invalidated part (but not all) of this law, including the parts of the law that would have compelled schools to report on students’ immigration status. However, other sections of the law (including sections that would prohibit undocumented students from enrolling in public universities) were not explicitly blocked, and could still be enforced. Several other states, including Florida, Indiana, and Pennsylvania, have tried to enact similar legislation. While these attempts have failed, the discretionary nature of ICE’s policy against making arrests in schools, and HB 56’s tenacity in the face of challenges, suggest the dangers that undocumented children may face in their efforts to get an education.