Do You Need a Lawyer to File for DACA?

November 2, 2012
By Bonnie Stern Wasser on November 2, 2012 7:17 PM |

As of October 10, 179,000 people applied for Deferred Action for Childhood Arrivals (DACA) of the estimated 1.7 million people eligible. It's hard to know how many of the applicants hired lawyers to help with their applications. We do know that many did it themselves. If you are "easily eligible," do you need a lawyer at all? When or why would it be useful to have a lawyer help with a DACA application? Let's say you have done the online wizard at www.weownthedream.org or you have gone to a DACA volunteer lawyer workshop, or you have gone down the street to the free or "cheap" notario and have learned that you are eligible for DACA. Should you apply by yourself after looking at all the great material USCIS has published on the subject? Or should you hire a lawyer to file your case for you? The answer in my opinion is: it all depends.

Just how knowledgeable are you about all the DACA requirements? How much time do you have to devote to learning about it? How comfortable do you feel in your understanding about DACA and how it relates to the larger area of immigration law? More importantly, what is the impact of DACA eligibility upon future eligibility for longer term stay through a visa or green card, because DACA is neither at this point? It is an interim band aid called "deferred action", which merely temporarily defers or postpones deportation and removal for two years of people here in the US without authorization. In my opinion, the ultimate question about whether to hire a lawyer is: how seriously do you take your future in the US? Do you understand the wider issues of immigration law beyond DACA, given the facts and potential issues in your case? What if you would like to hire a lawyer but cannot afford one? (See the resources at the end of this article if you want an attorney to help you but don't have the resources to hire a private attorney.)

Deceptively Simple Forms?
The DACA forms on their face look easy enough to fill out, and the USCIS instructions are fairly clear. However, there are important legal consequences to many of the words used on the forms, such as signing "under penalty of perjury." Other not so obvious issues include the request for "Social Security Number" on the DACA form or "all Social Security Numbers Used" on the work authorization form, if you ever used a fake one; "removal proceedings" (a lot of people are unsure of the nature or outcome of proceedings, especially if they were ever stopped alone or with their parents along the border); "status at entry" (determined by case law and the facts); "other names used" (has a bearing on identity and security checks); all of the part 3 DACA form questions (pertaining to criminal and other behaviors, community risks, etc.); "residence" v. "physical presence" (important for meeting some of the statutory requirements); impact of "first date of entry" and "last date of entry" and any trips in between (dealing with breaks in continuous residence) and "threat to national security or public safety" (some of which is grounded in law and some of it grounded in the government's interpretation).

Some of the criteria and interpretations USCIS has provided are open to question that may require zealous advocacy, such as the effect of certain trips abroad during the required period of residency, or interpretation of "membership in a gang", "threat to national security or public safety" to name a few examples. Many words are terms of art with legal meaning. While a savvy person could easily Do it Yourself (DIY) by filling out a seemingly simple looking form, that same DIYer may not fully grasp the subtle nuances or meanings of the questions or answers in immigration law. Most importantly, applicants should want to get their applications prepared correctly at the outset because there is no right to appeal a denial! Further, any questions answered untruthfully can lead to denial and removal proceedings or potential bars to future long-term immigration.

Already we are seeing lots of applicants being sent Requests for Evidence, especially on residence and physical presence issues. With these potential consequences, just how important is your future in the US to you?

What are some of the advantages of hiring a lawyer?

An attorney can file a Notice of Appearance (Form G28) on your behalf which then requires the government to send the attorney all notices so that the attorney can help you keep track of your case, keep or change your biometrics appointment, attend local interviews with you if required, timely respond to Requests for Evidence, and remind you to update USCIS if you move. A good portion of my own legal practice includes DIYers who failed to keep appointments, failed to timely respond to notices, or to update the government about a changed address, resulting in denied cases due to abandonment. Attorneys can also keep clients up to date on developments about the ever changing DACA requirements, interpretations, filing and adjudication trends. They can help sort out sticky issues and advise more closely about the risks and benefits of applying. Most importantly, they can look at your situation more holistically than at a DACA-only workshop where the focus of the workshop may be strictly limited to your DACA eligibility but not your overall eligibility for future legal immigration or risk of removal. For example, DUIs have harsher consequences for DACA but may not make a person ineligible for a visa or green card. Are there other avenues to get longer term status? What are the bars to or issues about future legal long term immigration? What are the procedures and processing times? If DACA is granted, how will that fit into the strategy? What laws, regulations or court cases are in play that might affect the client positively or negatively in now or in the future? An attorney can also keep track of changes in the client's situation that may affect strategy. Attorneys can also help with cases that are "stuck" in the system or that require extra zealous advocacy, or follow up such as motions to reconsider, or motions to terminate removal proceedings after DACA is granted.

Community Clinics and Workshops

I have volunteered at DACA and other workshops and clinics sponsored by well-regarded legal organizations and have thoroughly enjoyed my time meeting some very ambitious young people. Unfortunately, due to the crowds, most of these workshops and consultation clinics have some limitations. They have been extremely well-attended and because of that, for lawyers to see the most people, they are designed for attorneys to give free limited advice either one on one or in a group setting. Note the word "limited." At least at the workshops I have attended, attorneys do not actually represent people as a matter of record before USICS in those cases (i.e., we have not filed form G28 as attorney of record so that USCIS will send us notices). Once the applicant leaves the workshop, we don't know what they will end up doing. There may be workshops around the country where attorneys do complete and file the applications as attorney of record. Because of the tremendous demand for advice and the limited number of attorneys available at these workshops, attorney time is sometimes limited to the narrow question of whether individuals qualify for DACA only. We may not have the time to really know all the details about a person's situation or their wider family situation as we would had the applicant and family come to the privacy of the attorney's own office with a least an hour of time to discuss their case(s). (At the clinics and workshops, we are careful to explain the limited nature of the advice being given.) When we do stumble upon these issues, we routinely suggest individuals make appointments with attorneys under less stressful circumstances outside of the workshop or clinic setting.

The Importance of Seeking Holistic Advice

There could be other forms of long-term relief available or potential issues for long-term relief that DACA eligibility ignores. For example, in my own practice, I use a very extensive questionnaire and interview prospective clients at length. I am on the lookout for other remedies such as family based immigration, work based immigration, U visas for victims of crimes, T visas for victims of trafficking, Violence Against Women Act remedies, asylum, special immigrant juveniles and more, derivative eligibility for green cards, perhaps automatic or acquired citizenship or naturalization or military benefits, plus grounds of inadmissibility and removal. DACA forgives some grounds of removal or inadmissibility but other visa and green card categories do not forgive those same grounds. Anyone thinking about applying for DACA should do so with a view toward the potential that DACA may convert to another program if the next Congress decides to deal with immigration. See my blog post on the pros and cons of applying, Should You Apply for DACA? An Update. Or, DACA could end, as Governor Romney has suggested in the Presidential race. In sum, in this Seattle immigration lawyer's opinion, DACA eligibility should be looked at in light of existing or potential new family based or other immigration opportunities as well as restrictions on future immigration.

In my office, we usually spend at least an hour or more gathering all the facts in a person's case, exploring potential remedies, explaining procedures, processing times and cost as well as any issues or ancillary applications needed such as waivers of inadmissibility or removability. Then there is the time needed to answer clients' questions and to make sure they understand and are fully informed. If the facts warrant, we try to come up with a long-term strategic plan for future legal immigration and citizenship. With the upcoming stateside processing of waiver applications that will be in effect by the end of this year, more opportunities may open up for family based immigration beneficiaries who, up to this point in time, held off applying because of the risk of family separation while applying at the US consulate abroad. It is important to understand how DACA status may fit into this longer term process.

Moreover, there are always important cases in the courts that can affect eligibility and procedures in a given case. For example, recently, an important case was decided in the Ninth Circuit Court of Appeals dealing with whether people who were previously deported can file for green cards in the US pursuant to "245(i)" or whether they must file abroad. Another recent case deals with whether certain applicants with a history of unlawful presence holding advance parole can travel. These are complicated questions that require a more thorough discussion and understanding of the applicant's unique background, history and understanding of risks. There is no "one size fits all" when it comes to dealing with options for people who have been living in the US without legal documents. Custom individualized solutions cannot always be made at group or limited advice workshops or clinics.

DACA legal assistance from qualified experts has value

Amazingly, many of the individuals I have seen at these workshops have never been to an attorney at all despite living in the US without status for many, many years. Occasionally, I see people who do have ample resources to hire an attorney, but they just want "free" or the cheapest advice they can find. By being unwilling to spend money on something as important as an individual's or family's future in the US, people may be missing out on potential opportunities beyond DACA. Immigration attorneys after all, are literally in the dream business. We try to help people achieve their personal, family and career dreams in the US. Even in the worst cases where nothing can be done, it can be more comforting to know that your case has been thoroughly evaluated from every angle by an experienced professional who has been truthful and candid with you. That beats the stress of spending year after year in limbo not really knowing one's status or opportunities, or relying on helpful but unqualified friends, relatives, notarios or consultants who have no business dispensing legal advice. In addition, if there is a future change in law, attorneys can let you know about it once they know more about your situation.

At the workshops I have attended, the hosting organizations have done a good job screening people for potentially easy, straightforward cases. This may be fine for the DIYers. However, anyone not clearly eligible should be getting individualized legal advice whether by paying an attorney or consulting with a BIA accredited nonprofit organization attorney or BIA accredited representative in their office. In sum, in my professional opinion, free workshops and clinics that limit their advice to the simple question of DACA eligibility may not be sufficient information for a lot of people who may have other options for longer term relief or more complicated DACA issues.

Private lawyers are business people and need to be paid for their services in order to keep their doors open so they can help people. Nonprofit organizations also need to be able to keep their doors open to help those in need. I realize that not everyone can afford to hire an attorney or even afford a paid consultation, which is why I volunteer my time for a number of organizations that provide pro bono service. But neither nonprofit organizations nor private law firms can afford to stay open without a source of income. Therefore, individuals who need legal advice should expect to pay for that service, just as you would expect to pay any other service provider such as your accountant, hair dresser, auto mechanic, doctor, and others. Learning about opportunities to stay in the US to be with family and pursue careers should have value and the people or organizations that provide that advice should be paid. Although nonprofit organizations and lawyers who work pro bono for them may not directly charge a fee, for them to continue to serve communities in need in the future, it's important to consider making a donation to the organization, even if it's not required.

Getting Legal Advice

Here are some resources for finding legal advice:

-Who can represent you before the US Department of Homeland Security and Immigration Courts
-American Immigration Lawyers Association
-List of Accredited Representatives and Organizations
-What questions to ask in selecting an attorney
-Beware of Notario Fraud and other Scams