17 August 2012
In the last few months, there has been many reports on Obama’s new Deferred Action for Childhood Arrivals (DACA) Memorandum, a form of prosecutorial discretion. The memorandum states that children who entered before June 15 2012, and before they turn 15 years old, could be granted authority to work and lawful status for a period of two years. There are a lot of misunderstandings about the benefits offered, and not enough understanding about the dangers and caveats of filing this application.
Radio Stations Report Incorrect Facts about Deferred Status
Even reputable radio stations get the facts wrong. KMOX and NPR both erroneously reported the incorrect age of eligibility. The eligibility starts at age 15 and ends at age 31, not 30 as these stations reported.
No Path to Citizenship
Deferred action does not confer any lawful immigration status, such as the status enjoyed while waiting for an adjustment of status. Deferred action also does not change the current immigration status, such as a grant of a visa, or lead to US citizenship.
What deferred status provides is a period of authorized stay. In other words, the person in deferred status is allowed to stay in the US with the permission of the government. Any unlawful status before deferred action is granted, or after deferred action status ends, will still be unlawful (source). Immigration can review and/or withdraw the deferred action status at any time.
Presence in the US
In order to apply, individuals must be between the ages of 15 to 31 as of June 15, 2012. They must also have lived in the US continuously from June 15th 2007 to the present, and should have been physically present in the US on June 15th, 2012. Presence in the US is also required when filing an application.
Inspection at the border is not required; individuals could have ‘snuck’ over the border or have overstayed their visa.
Proving Presence in the US
It is fine to have left for a few days to Mexico or the Caribbean; this will not interrupt continuous physical presence. Documentation of stay could include medical and school records, or utility bills and tax filings. The evidence is weighed by USCIS using a ‘totality of circumstances’ standard to prove circumstantially that there is the required presence in the US. In addition, presence could be proved by evidence of stay in the US before and after June 15th, 2012.
Stay in school! Be “all that you can be.”
Applicants must be enrolled in elementary, secondary, high school or college to be eligible. A GED from a reputable school is fine, and a college education is great. An honorable discharge from the Coast Guards or Armed Forces is fine too. Anecdotally, there are only a few who will benefit from service in the armed forces. Only US citizens and permanent residents can enroll with a few exceptions from ‘those vital to the national interest’, and even then most would be eligible for naturalization and would not need deferred status.
Beware of Crimes
Applicants with significant criminal history need not apply. Those who are subject to removal orders from an immigration judge should apply for prosecutorial discretion. ICE may administratively close cases for individuals who are eligible for deferred action.
But if an individual has remained in the US after a grant of voluntary departure from a judge, then that person is subject to other immigration penalties, such as fines and bars to filing an immigration application for 10 years.
Being a Member of a Gang
Many law enforcement agencies maintain a ‘gang book’ of tattoos and the meaning of gang symbols. If an applicant has a gang tattoo or has been profiled in a ‘gang book,’ then that may be a problem, especially if the applicant is interviewed and the tattoos are revealed.
Generally, traffic offenses are not considered fatal to an application. However, those with outstanding traffic tickets; unpaid parking tickets; accidents and arrest warrants for traffic violations; and accumulation points on a drivers’ license close to suspension of the license, need to exercise caution.
DWIs and Domestic Violence
Increasingly domestic violence and driving under the influence are being targeted as bars to immigration benefits. DWI convictions are already a bar to returning on a non-immigrant visa to the US. DWIs are a bar to applying, regardless of the sentence imposed.
Using a False Social Security Number
Using a false social security number is a federal crime with applicable jail time and fines. The applicant risks USCIS reporting the false document use to ICE, which could end in removal and federal prosecution. Chances are that false claims of US citizenship status have been made on I-9 forms, and taxes have been filed using the same social security number. In addition to all the federal crimes, there could also be immigration law violations due to the possible allegations of identity theft. Filing an application under these circumstances is very risky.
Entering Using False Documents
While a minor may not have a say on if the parents entered using false documents, USCIS can still share that information with ICE, and those facts could pose a problem for the parents and others who entered using false documents. All applicants are fingerprinted and photographed. There will be a background check on all applicants, and USCIS can share information about false documents and criminal history with ICE.
Arizona Decided Not to Issue Drivers’ Licenses
Gov. Brewer recently signed an executive order not to issue drivers licenses to conferees of deferred status on the basis that they were in unlawful status. Perhaps she did not read the relevant statutes. This statute is also called the Real ID Act.
Improved Security for Drivers’ Licenses and Personal Identification Cards
Pub.L. 109-13, Div. B, Title II, §§ 201 to 207, May 11, 2005, 119 Stat. 311, provided that:
“(2) Special requirements.–
“(A) In general.–To meet the requirements of this section [this note], a State shall comply with the minimum standards of this paragraph.
“(B) Evidence of lawful status.–A State shall require, before issuing a driver’s license or identification card to a person, valid documentary evidence that the person–
“(i) is a citizen or national of the United States;
“(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;
“(iii) has conditional permanent resident status in the United States;
“(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;
“(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;
“(vi) has a pending application for asylum in the United States;
“(vii) has a pending or approved application for temporary protected status in the United States;
“(viii) has approved deferred action status; or
“(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.
The Final Word
Deferred status could be used to keep a person in status while they are waiting for a priority date, in the family context. This status could stall unlawful status for a person shy of their 18th birthday. There is also a lot of discussion about filing for advanced parole after obtaining deferred status to exit and re-enter the US, and then, without filing a waiver, to file for immigrant status based on a relative.
The deferred status application is seemingly simple, but could be extremely complicated and lethal for the applicant and family members (see Arrabally, Yerrabelly). Those matters should be discussed with an immigration attorney before applying. Contact Nalini Mahadevan or Diane Metzger at Lowenbaum Partnership, LLC.
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