Friday, September 14, 2012

Can Facebook Entries Help Applicants for Deferred Action for Childhood Arrivals (DREAMers)?

This Washington Post article hints at a possible creative solution for those who apply for deferred action for childhood arrivals (DREAMers), and who need proof of physical presence: Facebook pages.

Applicants must show five years of physical presence before June 15, 2012, as well as physical presence on June 15, 2012 and at the date of filing.  For some undocumented aliens, there may not be any official records or even mail to prove your physical presence.

Facebook, however, has a function that allows you to "check-in" at certain places.  If you use a mobile device with a GPS locator, Facebook finds where you are, and posts it for you when you check-in.  If you had a habit of "checking-in" over a course of time, and the places where you check-in are in the United States, then perhaps your Facebook account can be proof of physical presence in the United States.

There is no guarantee that the Government will accept such proof. There is an argument that this creates the potential for fraud.  Sure, you could give your cell phone to a friend and have that friend "check-in" for you.  Of course, for this to have been fraud, you would have had to have planned for the Administration to come up with this program years ago, and made a conscious effort to have others "check-in" just to show your physical presence. 

On the other hand, using Facebook as evidence can be a double-edge sword.  First, if you happened to have left the United States and checked in the last five years, the Government will see that.  Also, if you have posted things that you are not proud of, like an urging to violently overthrow some government, or admitting to the elements of some crime even if you were never convicted, then the Government will know that too.  If you are going to use Facebook as evidence, be careful to look through your posts carefully.

Nonetheless, I have been warning people for years that the Government does look at your Facebook accounts.  In marriage visa petitions, for example, if the Government were to see that the intending immigrant actually lists their status as "single," well, that can be a problem.

In the absence of other evidence, though, I have learned that at times you have to be creative.  I have seen Facebook posts used in criminal cases successfully (for example, showing that an injury that is the subject of a criminal charge was actually present in a photo posted on Facebook before the alleged assault happened).  Perhaps it could be used successfully in immigration cases as well.

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