SISKIND SUSSER FAQ _ DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) By Greg Siskind (firstname.lastname@example.org) On June 15, 2012 President Obama announced he was ordering the Department of Homeland Security to not deport as many as a million young illegally present immigrants and allow them to apply for work cards. The policy is essentially a way to implement much of the DREAM Act by a form of action called “deferred action.” The following are answers to questions that many may have regarding this important news. What is “deferred action”? Deferred action is the indefinite delay of removal proceedings based on prosecutorial discretion. An individual with deferred action is not considered to be in a lawful status, but such individuals may receive employment authorization if they can demonstrate “an economic necessity for employment”, something that has traditionally not been difficult to show. Deferred action does not wipe away any prior periods of unlawful presence in the US, but a deferred individual does not accrue additional unlawful presence time during the time deferred action is in effect. Who is eligible for the new benefit? An applicant must be someone who - Entered the US before age 16 - Was under the age of 31 on June 15, 2012 - Was in the US on June 15, 2012 - Has been continuously residing in the US since June 15, 2007 - Entered the US without inspection before June 15, 2012 or entered lawfully but whose legal status expired as of June 15, 2012 - Is currently in school, has graduated or obtained a certificate of completion from high school or received a general education development (GED) certificate or has been honorably discharged from the Coast Guard or Armed Forces of the United States How old must a person be to apply for deferred action? If an applicant has never been in removal proceedings or removal proceedings were terminated before applying for deferred action, the applicant must be at least 15 years of age at the time of filing. If the applicant is in removal proceedings or has a final order of removal or has a voluntary departure order AND is not in detention, deferred action can be requested even if the applicant is under the age of 15 at the time of filing. What would disqualify someone? Aside from an applicant not being able to document that he or she meets the above criteria, those who have committed a felony, a significant misdemeanor, three or more other misdemeanors or otherwise pose a threat to national security or public safety are ineligible. What if I’m currently in removal proceedings or have already been ordered removed or have a voluntary departure order? These alone won’t keep someone from benefiting from deferred action as long as the applicant is not in immigration detention. The application process would be filed the same way. For those in detention, a request must be made through ICE – not USCIS – under a different procedure. Detainees should identify themselves to their detention officers to request deferred action or call the ICE Office of the Public Advocate at 1-888-351-4024 (open Monday through Friday 9 am to 5 pm) or by email at EROPublicAdvocate@ice.dhs.gov. How long will deferred action be granted? Deferred action grants will be conferred for two years at a time. Every two years, individuals can request renewal of deferred action as well as an extension of work authorization. Applicants no longer need to be under 31 at the time of an extension. How does an applicant prove he or she was present in the US before turning 16 years old? Applicants can provide financial, medical, school, employment and military records. Applicants can also submit other documents that show an applicant’s age on the date of entry to the US. Circumstantial evidence can be used in this category where the suggested documentary evidence is insufficient or lacking. However, circumstantial evidence cannot be used to document an applicant’s age or meet the education requirement. How does an applicant prove that he or she was physically present in the US on June 15, 2012? Applicants can provide financial, medical, school, employment and military records. Applicants can also submit other documents that show the applicant’s name (and/or biographical information) and the June 15, 2012 date. Circumstantial evidence can also be used in this category. Therefore, if an applicant can show presence in the US shortly before and after June 15, 2012, USCIS can consider such evidence. What documents can applicants present to prove they resided in the US for five years before June 15, 2012? Applicants can present financial, medical, school, employment and military records. Applicants can also submit other documents providing the applicant’s name (and/or biographical information) and dates within this five year period. Circumstantial evidence can also be used in this category, provided that (1) the above direct evidence of continuous residence has been used to prove at least a portion of the five years and (2) the circumstantial evidence is only used to fill in gaps in the five years that were not covered by the direct evidence. Affidavits may also be used to fill in gaps in the five years of continuous residence, but applicants relying on them should be prepared to submit at least two from individuals who have direct personal knowledge of the applicant’s circumstances. What documentation can be used to show an applicant is currently in school, has a GED or has graduated from high school? Diplomas, GED certificates, report cards and school transcripts can be provided among other evidence. What does it mean to be “currently in school”? “Currently in school” means enrolled in school on the date you submit a request for consideration of deferred action. USCIS has not defined the term “enrolled” and it is not clear if that would mean applicants are not eligible to apply during the summer before they have registered for the new school year. If registration for the following school year happens while the student is still enrolled, this should not be an issue. Also, pursuing a GED in a state or federally-funded preparation class is sufficient to meet this requirement. What documentation can be provided to show honorable discharge from the Coast Guard or Armed Forces? Applicants can provide a report of separation form, military personnel records and military health records, as well as any other documents the applicant believes can show the honorable discharge. How does a person file for deferred action under the childhood arrivals program? Beginning August 15, 2012, applicants will file with USCIS a deferred action application form (not released as of the time of this writing) and, if desired, an application for employment authorization. USCIS appears to be developing a new employment authorization application specifically for this program. Applicants will also be subject to background checks and will have to provide biographic and biometric information including being fingerprinted and photographed. How much does the application cost? The application process (deferred action plus employment authorization) will cost $465. Once granted, the fee to apply for a travel document is $360. Fee waivers are not available, but there are very limited fee exemptions available. Those seeking fee exemptions must provide a letter and supporting documents showing the applicant meets one of the following conditions: The applicant is under 18 years of age, homeless, in foster care or otherwise lacking any parental or other familial support, and (if possessing any income) the applicant’s income is less than 150% of the U.S. poverty level. The applicant cannot care for himself or herself due to a serious, chronic disability and (if possessing any income) the applicant’s income is less than 150% of the U.S. poverty level. The applicant, at the time of the request, has accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for himself or herself or an immediate family member, and (if possessing any income) the applicant’s income is less than 150% of the U.S. poverty level. Applicants seeking a fee exemption are going to have to submit substantial evidence to justify the request. For example, affidavits from community-based or religious organizations can be submitted to show someone is homeless or lacks family financial support. Tax returns, bank statements and pay stubs can show income level. Medical records can also help. If seeking a fee exemption, the fee exemption must be submitted and approved before the applicant may submit a request for deferred action for childhood arrivals without the required fee. What types of law enforcement actions will disqualify an applicant? Anyone with a conviction for a felony, a significant misdemeanor, three or more other misdemeanors not occurring on the same date and not arising out of the same act, or who otherwise poses a threat to national security or public safety will be barred from the program, except where USCIS determines there are exceptional circumstances All applicants will be subject to background checks including fingerprinting. Felonies are criminal offenses punishable by jail time of more than one year. According to USCIS, significant misdemeanors must have a maximum term of imprisonment of one year and a minimum of five days and (1) be for domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence, or (2) be an offense where the applicant was sentenced to time in custody of more than 90 days. Suspended sentences are not considered to be time served in custody. In any case, USCIS has discretion to deny deferred action even when an individual is sentenced to custody of 90 days or less. The decision whether to defer action is, according to USCIS, “an individualized, discretionary one that is made taking into account the totality of the circumstances.” Minor traffic offenses such as driving without a license will not be considered misdemeanors under the deferred action program. However, a person’s broad history of offenses can be reviewed in determining whether exercising prosecutorial discretion is warranted. According to DHS, “Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.” Expunged and juvenile convictions won’t automatically disqualify an applicant. This is more liberal than normal immigration rules which ignore expungements, but note that applications will still be reviewed on a case by case basis to see if deferred action is warranted. Juveniles tried as adults will be treated as adults for purposes of determining if they have a disqualifying conviction. The rules also allow for a denial when a person poses a national security or public safety threat. This might include gang membership, participation in criminal activities, or participation in activities deemed threatening to the US. Will applying for deferred action put my parents or other relatives at risk? USCIS has noted in its guidelines that it is not sharing information with Immigration and Customs Enforcement (ICE) or US Customs and Border Protection (CBP) about applicants unless the applicant has committed fraud in the application process, has a criminal history or otherwise poses a national security concern. This same policy applies to family members of the deferred action applicant. What if my case is denied? If the case is denied for reasons not related to criminal activity, fraud or posing a threat to national security or public safety, USCIS will not refer the matter to ICE except where DHS believes exceptional circumstances exist. Others could risk placement in removal proceedings. Can denied cases be appealed? No. Denied applicants can, however, request USCIS review of the case if USCIS denied based on an abandonment of the case and the applicant believes he or she responded in a timely manner to a request for evidence. Also, a request for review can be submitted if USCIS mailed the request for evidence to the wrong address even though the applicant had completed an AR-11 Change of Address form. Will beneficiaries of deferred action be able to travel outside the US? While the deferred action application is pending, travel will not be permitted and those who travel after August 15, 2012 and before the granting of deferred action will not be granted deferred action. After the granting of deferred action, applicants will be permitted to apply for advance parole documents which will allow for travel. Note that those in removal proceedings who leave the US without parole documents will be deemed to have removed themselves. Unlike adjustment of status cases where advance parole documents are routinely granted for any bona fide purpose, USCIS has more narrowly defined eligibility and has stated that applicants must be “traveling for humanitarian purposes, educational purposes, or employment purposes.” What if I have been outside the US for short periods during the five year residency period? USCIS will look at absences, and if they consider them brief, casual, or innocent, the absences will be excused. This analysis only applies to trips before August 15, 2012. Trips will be considered brief, casual and innocent if all of the following are true: 1. The trip was short and reasonably calculated to accomplish the purpose of the absence. For example, if you left to attend a funeral, a multi-month absence might be a problem. 2. The absence was not because of an order of exclusion, deportation or removal. 3. The absence was not because of either an administrative or immigration court order of voluntary departure. 4. The purpose of the trip and your actions while outside the US were not illegal. The burden will be on applicants to prove a trip was brief, casual and innocent. While affidavits are generally not accepted on their own in deferred action cases, they can be used to show that an absence was brief, casual or innocent. At least two affidavits would need to be submitted from individuals with direct knowledge of an applicant’s circumstances. Circumstantial evidence is also permitted here. Will an applicant accrue unlawful presence while the application is pending or after it is approved? For those over 18 at the time of filing the application, accumulation of unlawful presence will continue while the application is pending. That’s important because a person might accrue enough unlawful presence to lead to three or ten year unlawful presence bars in the future. If an applicant is under 18 while the application is pending, no unlawful presence will accumulate. If a person turns 18 while the application is pending, no new unlawful presence will accrue. After the application is approved, no unlawful presence will accrue, but note that the approval won’t excuse previously accrued unlawful presence. Am I considered “legal” after I get deferred action? No. Those with deferred action won’t face deportation, won’t accrue unlawful presence and can potentially obtain employment authorization, but they are not considered in a lawful status just because deferred action has been granted. Can I get a green card? Deferred action does not in and of itself lead to the granting of a green card. If an applicant is otherwise eligible for a green card, there may be a possibility of using advance parole to acquire a green card via consular processing. However, this is not entirely clear yet. Will family members of an approved deferred action applicant receive any benefits? No. Only those who meet the guidelines can apply for deferred action and dependents won’t get any benefits. Who can assist with filing a deferred action application? USCIS and ICE have strict rules regarding who can assist with preparing and filing applications. Only attorneys and representatives of specially approved non-profit organizations may do so. USCIS has warned the public not to work with so called “notarios” as such individuals are engaged in the unauthorized practice of law, a crime in every state. Individuals holding themselves out as immigration consultants are also violating unauthorized practice of law statutes in Tennessee, Arkansas and Mississippi. Furthermore, to the extent a notario or immigration consultant supplies false statements or documentation, law enforcement authorities may pursue criminal charges against an applicant as well as the notario/consultant. Deportation is a likely course of action in such cases. Will applicants with pending asylum or cancellation of removal cases be considered to be in unlawful status on June 15, 2012? Yes. Essentially, this means that those applicants will still be eligible to apply for deferred action, assuming they meet all of the other criteria. Are applicants who had their deportation cases closed under the prosecutorial discretion policy eligible for deferred action? Yes. Also, applicants who declined an offer of administrative closure under the case-by-case prosecutorial discretion review process are eligible for deferred action. Can deferred action be requested by those who don’t meet the criteria? In theory, yes. Deferred action is not a new process and USCIS always has the authority to grant deferred action on a case by case basis. What is new is that USCIS has indicated that those who meet the new criteria will generally be considered qualified for deferred action. What should applicants about to be removed from the US do? Those applicants should immediately contact the Law Enforcement Support Center hotline at 1-855-448- 6903 (a 24 hour/7 day a week phone line) or the ICE office of the Public Advocate at 1-888-351-4024 (staffed weekdays between 9 am and 5 pm) or email EROPublicAdvocate@ice.dhs.gov.
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