Wake up DREAMers
DREAMers, the alarm clock is going off, but is it time to get up?
What every DREAMer needs to know.
“And as long as I’m President, I will not give up on this issue, not only because it’s the right thing to do for our economy – and CEO's agree with me – not just because it’s the right thing to do for our security, but because it’s the right thing to do, period.” – President Barak Obama, June 15, 2012
With this proclamation President Obama announced he was ordering the Department of Homeland Security to not deport the one million plus young undocumented immigrants and allow them to obtain permission to work, social security cards and driver’s licenses. The policy is not the equivalent of the DREAM Act because it does not provide a mechanism for young people to become lawful permanent residents and obtain a “green card” or become US citizens. The policy simply provides qualified applicants a temporary reprieve from deportation which is called “deferred action.”Therefore, the policy is neither a complete nor a permanent solution for DREAMERs. Furthermore,this policy is not for everyone, and there may be cases where even those who appear to qualify are probably better off not applying.
The policy is temporary because it is based only on an executive order and as such can be changed by any subsequent president. If Mitt Romney takes over the White House deferred action might last until Romney's inauguration day on January 2013. Or, he may simply allow the Order to continue in effect and allow Congress to vacate it by legislative action. Even if neither of these scenarios occur the grant of deferred action is for a two year period and requires that each DREAMer reapply.
My advice to all DREAMers and their advocates is to continue to press our Congressional leaders for a permanent solution that is inclusive, not only of DREAMers, but also their parents and other family members. We must continue to press for Comprehensive Immigration Reform.
In the meantime here is what DREAMers need to know.
Who is eligible for the new benefit?
An applicant must be someone who:
- Entered before age 16 (it does not matter how);
- Is 15 years old or older, but not older than 30 years of age when filing an application
- Has been in the US for at least five years before June 15, 2012; and
- Is currently in school, has graduated from high school or received a GED or has been honorably discharged from the Coast Guard or Armed Forces.
What would disqualify someone?
Even if one meets the above criteria, those who have committed felonies, significant misdemeanors, three or more misdemeanors of any type, as well as those deemed a national security or public safety threat are ineligible. (See below).
What is the application process?
The US Citizenship and Naturalization Service (USCIS) has been designated as the agency that will accept, review and decide cases. It has not yet announced when or how it will receive applications. If anyone tells you that you can apply now they are misinformed or trying to deceive you, as there is no set process yet. Please wait until USCIS announces the procedure that will be used. In the meantime start to gather the documentation that will most likely be required.
Will I be investigated?
Yes, all applicants will be subject to biographic and criminalbackground checks including fingerprinting.
What types of crimes will disqualify an applicant?
Anyone with a conviction for a felony, a significant misdemeanor, three or more misdemeanors (not occurring on the same date and not arising out of the same act), or otherwise posing a threat to national security or public safety will be barred from the program. Felonies are criminal offenses punishable by jail time of at least one year. According to ICE,“A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; possession of a controlled substance (e.g. marijuana),driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or leaving the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.”Many of these crimes can subject you to mandatory detention. Do not assume that your misdemeanor conviction is not a serious misdemeanor.
What could count as a “national security threat”?
We do not know. DHS broadly characterizes “participation in activities that threaten the United States” as a national security threat. This means it will not be limited to criminal convictions.It could be that officials will look behind dismissed charges or juvenile delinquencyadjudications to determine whether a person presents a public safety threat. Any connections with gang activity or any action where the police stopped you and asked questions about gangs or gang membership and even any arrest or dismissed charge may be a disqualifier.
What can I do if I have a criminal record?
Individuals with criminal records are strongly urged to consult with a lawyer as early as possible (meaning now) before seeking to participate in the deferred action program. A lawyer will be able to determine if a particular criminal conviction will disqualify you. In certain cases a lawyer may be able to assist you in getting a criminal conviction vacated so that it does not affect your application.Warning: If you have a criminal history and you do not see a lawyer you risk detention and deportation.
What types of juvenile adjudications will disqualify an applicant?
This question is still being looked at and USCIS will announce the answer when it releases details on the deferred action application process in a few weeks. It is likely that juvenile acts involving gang activity or leading to public safety concerns may be problematic. As with criminal convictions (see above) it is highly advisable to consult an attorney before submitting an application for deferred action.
When can I apply?
USCIS has indicated they will begin accepting applications within 60 days of the June 15th announcement.
What will be the government’s fee to apply?
No announcement has been made yet on the amount of any fees.
What is “deferred action”?
Deferred action is the indefinite delay of removal or deportation proceedings, or the implementation of an actual removal or deportation order based on prosecutorial discretion. It entitles the individual to receive employment authorization if they can demonstrate “an economic necessity for employment”, something that has traditionally not been difficult to show.Deferred action is not an amnesty and does not wipe away any prior periods of unlawful presence in the US, but a deferred individual does not continue to accrue additional unlawful presence time during the time deferred action is in effect.
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 a renewal of deferred action as well as an extension of work authorization.
Can I get a green card?
No. Deferred action does not in and of itself lead to the granting of a green card. However, if an applicant who is otherwise eligible for a green card obtains deferred action, that individual should still be able to obtain his or her “green card.” For some individuals who are now unable to adjust their status because they have not entered the US legally there may be a possibility of being granted advance parole status which would allow an individual with deferred action to travel aboard and be paroled back into the US and subsequently apply for a “green card” via Adjustment of Status. But whether advance parole will be available or not is not yet known.
Will I get lawful status?
No, an individual with deferred action is not considered to be in a lawful status, but such individuals may not be deported while in that status. Most importantly you will get an Employment Authorization Document which is required for a social security card and driver’s license. Also, an individual with deferred action will not accumulate unlawful presence time during the period of time that they are granted deferred action.
Can an individual who is already in removal proceedings or who has been ordered removed apply?
Yes, individuals in removal proceedings and those with removal orders who meet the criteria for deferred action should be eligible to file for deferred action. If a person is subject to a final order of removal and about to be removed, they should contact their lawyer immediately or call ICE’s Office of the Public Advocate at 888-351-4024 or EROPublicAdvocate@ice.dhs.gov. Persons who have already benefited from prosecutorial discretion can also apply for deferred action in order to pursue employment authorization.
How will an individual document their age at arrival and time spent in the US continuously?
An individual can submit financial records, medical records, school records, employment records, military records and any other records that demonstrate the requirements are met.
Will beneficiaries of deferred action be able to travel outside the US?
This question is still being looked at and USCIS will announce the answer when it releases details on the deferred action application process in a few weeks.
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 or innocent absences undertaken for humanitarian purposes, they may be excused.
Who can assist with filing a deferral 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. Anyone claiming to be able to file an application right now is stating a falsehood. USCIS has warned the public not to work with so called “notarios” as such individuals are engaged in the unauthorized practice of law, which constitutes a crime in every state. Individuals holding themselves out as immigration consultants are also violating unauthorized practice of law statutes. 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” or consultant. Deportation is a likely course of action in such cases.
Who should not apply even if they meet the eligibility criteria?
Individuals who are already in the process of obtaining legal permanent resident status should consult a lawyer before applying for deferred action to make sure the application for deferred action does not affect their process of obtaining legal permanent resident status. Also, those individuals that have applications for relief from removal pending (such as Cancellation, Asylum, Adjustment of Status, etc.) with the immigration courts should consult a lawyer before applying for deferred action. Also, those with Voluntary Departure orders should consult an attorney before the order expires. An application for deferred action does not relieve the obligations and penalties under a Voluntary Departure order, but an attorney may be able to withdraw the Voluntary Departure order.
If deferred action is granted, will my dependents also receive deferred action?
No, they can only receive deferred action if they also qualify on their own merits.
Should I consult a lawyer if I think I can benefit from this program?
Yes. Individuals are strongly urged to consult with a lawyer before seeking to participate in the deferred action program in order to determine eligibility and ensure that the individual is not disqualified for any reason.
What will happen if my application gets denied?
No one knows for sure but there is no appeal process. If you are denied due to a criminal history or a security concern you may be detained and placed in deportation proceedings.
What will happen when the deferred action program ends?
No one knows for sure but unless Congress passes Comprehensive Immigration Reform or the DREAM Act legislation, all those who applied for deferred action will likely revert to their prior “undocumented” status. However, now USCIS will have their information and know their whereabouts. Although it is not likely, should there be a change in policy it is certainly a possibility that deportations may once again occur.
What should I do now?
First, if you have a criminal or juvenile history get a copy of your record from whatever court your case was heard, including all juvenile delinquency adjudications. Try to get copies of police reports, a criminal history background check, or your “rap sheet.” Many states already have systems for you to collect your criminal history. In many cases, you can find it on your local county website or state government websites. Make sure you get them from all states where you believe you may have been arrested or convicted. Next, meet with an accredited representative from an immigration nonprofit organization, or an immigration attorney experienced in deportation defense or the immigration consequences of criminal convictions. Make sure they review all your arrest information and criminal conviction documents. Finally, start to gather documentation that will prove you qualify. For example, birth, school, medical, financial, and employment records will have great evidentiary value. Tax returns, and other government issued papers will also help. If you do not have sufficient documents get affidavits from church, community organizations, landlords and others that may be able to attest to the necessary facts (i.e., entered before the age of 16, has continuously resided since June 14, 2007, graduated from high school, GED or currently in high school, etc.).
Do you have any final advice?
Yes, get good legal advice from an experienced immigration lawyer. DO NOT consult “Notarios.”DO NOT lie on your applications. Fraud will get your application denied and may get you deported. Stay tuned as I will be providing updates as the information becomes available.
What additional resources can I review?
DHS Memo Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children - June 15, 2012
Official DHS Frequently Asked Questions on the Napolitano Memo - June 15, 2012
Department of Homeland Security Press Release - June 15, 2012
Official Transcript of the Remarks by the President on the DHS Memo Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children AILA InfoNet Doc. No. 12061661
ICE Memo on the Exercise of Prosecutorial Discretion for Certain Young People – June 15, 2012
Obama to announce US will stop deporting some young illegal immigrants a news article by the Sacramento Bee
Immigration Impact blog: President Obama to Halt Removal of DREAMers
Law Professors Letter on Executive authority to grant administrative relief for DREAM Act beneficiaries
Immigration and Customs Enforcement Website
US Citizenship and Immigration Services
Obama Immigration Policy Favored 2-to-1 by Likely Voters a news article by Bloomberg Business Week
Jon Stewart of the Daily Show takes on President Obama’s policy change for DREAMers
The Migration Policy Institute provides an analysis of the policy change and the challenges to its implementations at http://www.migrationinformation.org/USfocus/display.cfm?ID=897.
US Citizenship and Immigration Services TheUS Citizenship and Immigration Services (USCIS) website has information on the new policy, including a warning against applying now and "Frequently Asked Questions" at http://1.usa.gov/LhQrYl.
National Immigration Law Center
The National Immigration Law Center offers "Frequently Asked Questions" about the new policy at http://www.nilc.org/FAQdeferredactionyouth.html.
Catholic Legal Immigration Network, Inc.
The Catholic Legal Immigration Network, Inc. (CLINIC) provides a brief description of the new policy, including the types of documents clients may need to prove eligibility, at http://cliniclegal.org/front-announcement.
For more information please contact:
Roberto Gonzalez, Esq.
Gonzalez Law Offices, Inc.
450 Warren Avenue
East Providence, RI 02914
Written by: Robeto Gonzalez