Tag: DREAM Act

September 3, 2012

If you want to apply for Deferred Action for Childhood Arrivals (DACA) or learn more about the process, there are lots of free resources to help educate yourself. These range from information hubs like United We Dream and the National Immigration Law Center, to short FAQs like these from the Legal Aid Society on DACA eligibility, crimes, travel, and public health insurance, and the New York Immigration Coalition’s document checklist, to a comprehensive lawyer-oriented practice advisory. Here, my blog will offer a few important tips about things you need to know and do first, before you attend a legal service clinic or meet with an immigration lawyer.

1. Criminal History:

Get original Certificates of Disposition for every arrest or summons you have ever had, whether it was an ACD, dismissed, pardoned, youthful offender, juvenile delinquency, open beverage, or fare-beating on public transit. Tell the attorney even if it is a record you cannot obtain, such as a sealed or expunged conviction. Past offenses that do not count in other settings can have severe, permanent consequences under immigration laws. Whatever it was, make sure you have the Certificate of Disposition in hand so that when you meet with a lawyer, he or she can give you a realistic idea of what may flow from that event, and whether it may be a bar to Deferred Action.

No attorney can counsel you on the effects of conduct they don’t know about, so be honest. Do not guess! Be aware that once you have filed a DACA application, everything in it is known to USCIS, and may be revealed to other agencies as well if they decide that you are a “high enforcement priority.” All applicants have to give biometrics – digital fingerprinting and a digital photograph. Fingerprints will be forwarded to a wide array of law enforcement agencies for background checks (not just within the U.S.), and the photo alone is a reason not to file if you have visible gang-related tattoos.

2. Alien Registration Number

If you have ever been in immigration court, or held resident status and then lost it, or had an Employment Authorization card, or if anyone ever filed papers on your behalf, then you may already have an A#. If any of these apply to you, but you do NOT know your A# or even whether you have one, it may be worth the wait to file a Freedom of Information Act request to find out if you have one. If you know your A#, call the immigration court hotline (1-800-898-7180) with a pen & paper handy, and enter the A# to see if you are in the system already. If it says there is no record, then you have not been ordered removed, nor had proceedings commenced in your absence.* If there have been any immigration court proceedings against you, then the automated system will spell out your name and give other details. Know this before filing for DACA, as you must disclose it on the forms.

*The A# that appears on a work authorization card begins with a “1” and will not show up in the court system.

3. Employment & Use of False SSN

If you have ever worked without authorization using a false Social Security Number, do not file for DACA relief now, even though all the FAQs and document checklists say to include your employment records. The first reason is because using someone else’s SSN could be grounds for denial of your application and issuance of a Notice to Appear, which begins removal proceedings. The second and more serious reason is, it may be treated as a felony false claim to U.S. citizenship, and a bar to future immigration benefits such as residence or citizenship. If you have used an SSN for employment, but you are not sure whether it was a made-up number or if it used to be somebody’s real one, err on the side of caution. Don’t file now, wait to see how these applicants are treated by USCIS.

Also, if you have not had work authorization, avoid disclosing the names of present or past employers. USCIS has made limited statements that filing a DACA application will not result in enforcement actions against family members of applicants, but there are no such protections for employers who have hired unauthorized workers. Naming employers could subject them to fines or audits.

4. Entry Without Inspection

If you did not cross the border on foot, and are not sure how to characterize your entry into the United States, consult the family member who knows the most facts about how you came into the US, and then consult an immigration attorney or legal service provider to help you complete the DACA forms. For instance, if you were driven across the border in a vehicle, it makes a big difference whether you were concealed in the back or sitting on the seat where you could see out the windows.

5. Travel and the Permanent Bars

If you have lived in the U.S. unlawfully for more than a year, and then left voluntarily, and re-entered the United States illegally, OR if you were previously deported or removed, and then you re-entered the United States illegally, you are subject to a permanent bar, and will be ineligible for residence or citizenship. If one of the permanent bars applies to you, alerting USCIS to your presence through filing a DACA application would be unwise. However, “unlawful presence” is complex, especially for people who entered the U.S. lawfully as students or exchange visitors, so this analysis may require a lawyer.

These are just a few areas in which “forewarned is forearmed.” Deferred Action for Childhood Arrivals presents a welcome opportunity and offers a temporary relief from removal for many, but it also poses significant risks. Know the risks to avoid placing yourself and others in harm’s way.

*Like all publications on Deferred Action for Childhood Arrivals, this is a work in progress and may be updated from time to time.

August 8, 2012

Senator Dick Durbin and Representative Luis Gutierrez released a video message to the DREAMers on August 6 that is one of the most irresponsible and dangerous public messages from a voice of authority in living memory. It is a deep disgrace that supposed champions and co-sponsors of the DREAM Act would advise young people who are eligible for Deferred Action for Childhod Arrivals, “Do Not Hire a Lawyer.” Yet Sen. Durbin said those those words, doing a huge disservice to the very vulnerable class of people they are ostensibly trying to help.

These elected representatives perpetuate a dangerous source of confusion between unscrupulous ‘notarios’ who engage in the unauthorized practice of law, and licensed, trained attorneys who are subject to ethical rules and have the ability to advise DREAMers properly on the process and potential consequences of applying for Deferred Action for Childhood Arrivals.

An experienced immigration lawyer who has carefully reviewed the applicant’s background and documents can ensure that DREAMers file applications which will have the best possible chance of success. This is why Senator Durbin’s patently false claim that “Virtually everyone will be able to go through this process without a lawyer,” is so disturbing. Perhaps he has already forgotten that the Deferred Action application process includes no right of appeal, and permits no motions to reopen. This is a one-shot opportunity. Applicants must get it right on the first try, or else they face a discretionary denial that is final and cannot be reviewed.

Perhaps Sen. Durbin and Rep. Gutierrez have also forgotten that both USCIS and ICE have extremely poor track records with respect to granting any forms of discretionary relief to applicants who are unrepresented by counsel. The memos of June 2011 from ICE Director John Morton authorized broad use of prosecutorial discretion for those already in proceedings who have no criminal convictions, but the rate at which such relief has been granted in immigration courts is less than 2%. Self-represented applicants who misunderstand any of the Deferred Action criteria and thus fail to interpret their own eligibility correctly, or who get the standard right but provide documentation that USCIS regards as insufficient, or who believe that the information they provide will remain confidential, may be placing themselves and their families at risk of deportation. These are some of the key reasons why it is so very important for DREAMers seeking Deferred Action for Childhood Arrivals to consult with a knowledgeable
immigration attorney or legal service organization, and why the message from Messrs. Durbin & Gutierrez will do real harm.