Articles Posted in DREAM Act/Deferred Action/DACA/Childhood Arrivals

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President Obama announced tonight in very broad terms that he would expand “deferred action” to millions of undocumented immigrants beyond the DACA program of 2012 (Deferred Action for Childhood Arrivals). The new program, to begin in 2015, will benefit the following groups of people who choose to step forward out of the shadows for a less than perfect immigration status. Deferred action is NOT a green card/permanent residence, a visa, citizenship, amnesty nor legalization. It just defers or delays potential deportation for two years but does offer the opportunity to work during those three years.

Eligible Groups for Deferred Action:

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President Obama is scheduled to announce his plan for Executive Action on immigration tonight at 5pm PST. Most of the networks will NOT be carrying his speech. However, CNN, MSNBC, Telemundo and Univision among others will, although this could change later today. If you miss it, the White House will have a recording here. Most of the controversy between the Democrats and Republicans is over what to do with the millions of people living in the US without legal papers. However, Executive Action will hopefully also encompass some administrative fixes to the legal immigration system, both for family and business immigration. President Obama is also predicted to make some changes to enforcement and border security, which could mean more deportations and problems for certain classes of undocumented immigrants as well as for those trying to get to the US without proper papers.

Relief for more of the undocumented? Things to consider.

Whatever relief President Obama offers to a wider group of undocumented immigrants, people should be aware of these important points:

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On March 13, 2014, President Obama called for a review of the Department of Homeland Security’s (DHS) enforcement practices. However, this week he announced that he would delay this effort until summer’s end if Congress does not pass legislation in the remaining few legislative sessions before then. Hoping to extend an olive branch to the more restrictionist GOP House members, the President is hoping to give them a window of opportunity to take up immigration reform legislation in the coming weeks.

Almost a year ago, the United States Senate passed an immigration reform bill, S.744. But, the House of Representatives has never brought a reform bill for a vote on the floor. This is due in part to a deeply divided Republican party, where a minority of anti-reform representatives is holding the issue hostage in no small part because of mid-term elections. Most of these anti-reform Republicans are from gerrymandered, mostly white districts who hope to be re-elected or to elect more Tea Party favorites whose mantra is to oppose immigration benefits and to increase enforcement.

President Obama is caught in the middle, however. He has failed to satisfy immigrant advocates by his inaction in reviewing and humanizing deportation policies and improving immigration benefits adjudication trends. Yet, by merely suggesting he would review the policies, the Republicans have used their frequently used excuse to do oppose anything the President does by declaring him untrustworthy in implementing the law. Nonetheless, every day that goes by when Congress does not act on immigration reform, more families are being torn apart under a broken immigration system; businesses cannot hire the workers they need; and DHS will detain and deport another 1,000 people a day–many of whom could apply for legal status if reform is enacted.

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USCIS has released some preliminary guidance about the first batch of DACA recipients approaching the end of their first two years who received DACA from ICE (Immigration Customs and Enforcement) between June 15, 2012 and August 15, 2012 because they had cases in removal proceedings or were detained initially. These individuals must file for an initial DACA application within 120 days of their status expiring. They must apply as if for the first time, providing proof that they meet all of the relevant guidelines. These individuals must file form I-821D, the work permit application (I-765WS), and provide the filing fee of $465.00 and photos. Failure to file early within the 120-day period and on time, could result later in the accumulation of unlawful presence, which is important for future immigration if there are new opportunities or immigration reform. Note that USCIS has not yet revised the I-821D form for renewals but is currently seeking comments for a new form. Therefore, use the old form until the new one is available. More information for this group of ICE-granted DACA recipients can be found here.

Most DACA recipients, however, were approved by USCIS, not ICE. For this group, USCIS has not yet posted renewal guidelines, but expect them to do so soon. Stay tuned and visit this blog or the USCIS website frequently.

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On February 6, 2014, USCIS posted it’s latest statistics about the Deferred Action for Childhood Arrivals (or DACA) program. This program was created by President Obama in his administrative discretion not to deport certain young people who came to the US before they were 16. DACA applicants for the most part would have benefited from the DREAM Act if Congress had ever enacted it into law, which it never did.

As of December 31, 2013, USCIS has received 611,000 applications since DACA started in 2012. Another 20,000 were filed but were rejected for various reasons at the lockbox. Of the 611,000, 427,000 were filed in 2013, and 20,000 have been filed so far in 2014. 521,000 DACA applications have been approved since inception of the program. 16,000 have been denied and 72,000 filed in FY2014 are pending. Mexican nationals are the largest users of the program by far, followed by applicants from various Central American countries, S. Korea and the Philippines. Most applicants reside in California, Texas and Illinois. Washington residents rank 11th (13,000 applicants, of which about 11,000 have been approved.) Overall, it is pretty clear that most of the cases have been approved. The first group approved in 2012 are or will be applying for extensions of stay.

Basic requirements

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On January 18, 2013, USCIS updated its FAQs on the Deferred Action for Childhood Arrivals (DACA) program.

USCIS also released updated data on receipts, rejections, approvals and more. To date, it has received 407,899 applications, accepting 394,533 of those and rejecting about 13,000 applications (i.e., not properly filed). It has approved 154,000 and has 371,000 under review. USCIS has not reported on denials.

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I mentioned in my October 18, 2012 pre-election post, Should You Apply for DACA? An Update, that it seemed potential applicants for Deferred Action for Childhood Arrivals (DACA) were holding off filing applications after Governor Romney’s statement that he would not honor DACA applications filed after his inauguration if he was elected.

As of November 15, 2012, USCIS has received over 308,000 applications.There was a slight uptick in filings in October compared to September. Of the 308,000 accepted through November 15, 10,000 were rejected (as in not properly filed), 273,000 have been scheduled for biometrics and 27,000 have been approved. The rest are all pending. No data has been provided on denials or Requests For Evidence. USCIS estimates 1.7 million individuals may be eligible for DACA. This month, USCIS also provided data by country of origin, with the vast majority being from Mexico (212,000) followed by several Central and South American countries, plus 7000 from S. Korea and the Philippines. The bulk of the applicants live in California, with the next largest group living in Texas, New York, Florida and Illinois. Of course, the November 15 report only includes one week since the election. The next report should have better post-election data.

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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?

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A lot has been written about President Obama’s courageous Deferred Action for Childhood Arrivals (DACA) program, including the requirements, what kind of evidence is needed, and how to apply. There is a ton of “how to” information on the Internet from the implementing agencies, as well as from attorneys, nonprofit organizations and some not so well-meaning lawyers and non-lawyers wanting to take on DACA clients. As of October 10, 2012, USCIS has received 179,000 DACA applications and has approved 4591 of them. With an estimated 1.7 million potentially eligible DACA applicants, of whom only 10% have filed so far, a lot of people appear to be holding off on filing either due to the $465 cost, the unpredictability of the election, or they have a “wait and see” attitude about how the program will be carried out.

Now that DACA has been underway for almost two months, I have given more thought to the various opinions of professionals and pundits about this program and believe the more important question should be, even if you qualify, should you apply? In the end, it is up to each prospective applicant to independently decide whether to apply by weighing the risks and benefits about this unusual program. Although “deferred action” has been around for ages, we have not seen this “benefit” offered on such a potentially massive scale. For the people not already in removal proceedings, we are talking about stepping out of the shadows voluntarily for a short term unpredictable future status that can be terminated at any time. Pros and cons of applying are discussed in more detail below.

The Politics of DACA

We are less than a month away from the Presidential election. But it is also an election for members of Congress. President Obama has said he would continue DACA, and the current program anticipates a renewal process after two years. However, both candidates want Congress to do its job and work on Comprehensive Immigration Reform or some variation of the DREAM Act for this group. (Governor Romney has said he would veto a DREAM Act.) The only reason we have DACA is because several Congresses have failed to enact immigration reform over the last decade and the next Congress may be no different. Or will it? We just don’t know at this point.

Governor Romney said in the last couple of weeks that if he wins, he would honor DACA grants as of inauguration day on January 20, 2013. But, then he said two confusing additional things. First he said he would also honor any cases filed before January 20, 2013 and not yet decided because applicants would have already paid the filing fee for the “visa” and they should get something for that. (Obviously, by calling the DACA program a visa, he is either ignorant about the program or is misleading the public about what it is. Further, this argument treats DACA as a commodity that is purchased.) But then he said he would only honor the cases that have been GRANTED by January 20, 2013. This implies the cases still pending by that date could be denied and/or people placed in removal proceedings. Being an election, any candidate can say anything that is politically expedient at the moment to get votes and then do something else once in office. Therefore, the whole situation is highly unpredictable.

Immigrant Advocate Voices

In the last few weeks and months, I have heard the following viewpoints on whether people should apply for DACA. Potential applicants will have to balance these arguments and make their own decisions about which arguments have the most meaning for them when weighing whether to apply and take on further risks. Timing is everything in part.

Pros:
1. There is safety in numbers. The more people that apply, the more advocacy power as a group, and the less likely benefits will be taken away.
2. DACA grantees could very well be absorbed in any new program. There is historical evidence for this. An example is the fate of the Guatemalans in the 1990 class action case, American Baptist Churches v. Thornburgh in which they were able to reapply for asylum. Later this group morphed into the Deferred Enforced Departure program. El Salvadorans obtained Temporary Protected Status. Later, these same El Salvadorans and Guatemalans were able to get green cards years later when Congress enacted the Nicaraguan and Central American Relief Act in 1997.
3. DACA recipients are low on the ICE priority list for removal pursuant to the prosecutorial discretion memos.
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During the last month since President Obama announced the new Deferred Action program for Certain Young People, I have mulled over the commentary by media, politicians, and immigrant advocates. There is plenty of information out there about the eligibility requirements or how they should be interpreted, but little discussion about whether people should apply in the first place. is this program all it’s hyped up to be and should people apply if qualified? After all, Deferred Action is not a visa, a green card, citizenship, or an amnesty. It is only a temporary administrative reprieve from removal or deportation.

President Obama’s June 15, 2012 program applies to two primary groups of young people: 1) those already in removal proceedings and 2) those who have never been in removal proceedings or who already have final orders of removal. The basic requirements are mentioned in my earlier post, President Obama Announces Deferred Action to Would-Be DREAMers. Deferred Action is already available for the first group currently in removal proceedings as well as to anyone else in proceedings whose compelling humanitarian situation justifies the grant of Deferred Action. Deferred Action is one tool in the government’s tool box of discretionary actions available. DHS is already contacting potentially eligible DREAM Deferred Action applicants, including those whose cases were previously administratively closed or their cases were rejected for administrative closure as part of the general prosecutorial discretion memos announced last summer. Individuals under 31 years old who may be eligible for Deferred Action may make motions now before ICE and the courts to determine if they can apply for Deferred Action. This article, however, is about the second group who will be able to step forward and apply for Deferred Action in mid-August. There is no way to file for Deferred Action right now. Eventually, DREAMers not in proceedings will apply directly to USCIS. The details of this program are being worked out and have not yet been announced. In the meantime, besides determining basic eligibility, now is the time for undocumented young people who have had no prior encounters with immigration authorities or removal proceedings to think about whether they should apply for Deferred Action at all, even if they qualify. Whether a person should step forward and announce their undocumented status is a very significant question, despite the opportunity for a temporary benefit. I believe this question requires thoughtful and well-informed consideration.

Looking at the limited commentary by immigration attorneys and immigrant rights advocates on whether potential DREAMers should step forward at all, I came up with these four broad and varying points of view:

1) Political Pessimists View Initially, several organizations and practitioners suggested that people should wait to apply until after the election to see how the Presidency and Congress shape up. While it is hard to predict what the next President or Congress will do, there is a chance that a more divided or conservative Congress would attempt to legislate this program away. GOP Presidential candidate, Mitt Romney, has not directly said he would do away with the program. He has stated that he prefers that Congress pass a DREAM Act (forgetting that Congress tried but failed to pass a DREAM Act in 2010-11). If elected to the Presidency, Mr. Romney will have the same Executive Powers that President Obama has to either disband, change or continue what President Obama started. However, we all know examples of how candidates can say one thing on the campaign trail and do something else once elected. Only time will tell. At this point in time, no one can predict what will happen.

2) Political Optimists View Other organizations and practitioners suggest that the more people who step forward to apply early on before the election, the less likely the next President or Congress will be willing to take status away from a largely sympathetic population, i.e., young people who were brought to the US by their parents with no control over their parents’ decisions who are going to school or starting careers. Most of these young people act or feel American but for the paperwork to prove it. The more sympathetic cases that are publicized, or the more DREAMers who “out” themselves publicly, the more likely legislators will be reluctant to take such a benefit away. Polls show that a majority of Americans favor granting some status to this population. Deferred Action will relieve some stress, at least temporarily, for a potentially large number of people, enabling them to work and/or move on with their lives.
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