Friday, October 12, 2012

I Do Not Meet All of the Criteria for Deferred Action for Childhood Arrivals, Should I Still Apply?

I have been getting a number of people who admit that they do not meet one of the criteria for the President's Deferred Action for Childhood Arrivals (DREAMers, or DACA) program.  The question is whether they should go ahead and apply anyway.  This is not always an easy question to answer, and careful consideration should be given to the person's individual situation.

That being said, let's first consider exactly what deferred action is.  Deferred action is a decision by the U.S. Government not to seek the removal or deportation of an alien who otherwise is present in the United States in violation of U.S. immigration law.  That could be because the person entered illegally, or entered on a valid visa and overstayed, or entered on a visa that did not include work authorization, but worked anyway.  Department of Homeland Security regulations, 8 CFR 274a.12(c)(14), permit an alien granted deferred action to apply for employment authorization with a showing of economic necessity.

As an act of executive discretion, the President has broad authority to grant deferred action.  It could, for example, be based on humanitarian grounds.

Through the Deferred Action for Childhood Arrivals program, the President has defined a certain group of individuals to whom he would like to grant deferred action.  They are people who meet the following criteria:

You may request consideration of deferred action for childhood arrivals if you:  

1.      Were under the age of 31 as of June 15, 2012;
2.      Came to the United States before reaching your 16th birthday;
3.      Have continuously resided in the United States since June 15, 2007, up to the present time; 
4.      Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5.      Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6.      Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7.      Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

(From the USCIS Guidelines).

This does not mean that if you do not meet all of the criteria that you cannot receive deferred action.

Consider the guidance USCIS places on its Frequently Asked Questions page. 

Q9: Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
A9:This process is only for individuals who meet the specific guidelines announced by the Secretary of Homeland Security. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

(Emphasis added).  USCIS continues:

Q8: How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
A8: If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

(Emphasis added).
These two answers appear to indicate that although a person may not meet the technical requirements of the Deferred Action for Childhood Arrivals, USCIS may still consider whether that person should receive deferred action on some other basis.  

The question is why the person does not meet the requirements.  In some instances, the person who asks has come to the United States when they were sixteen.  In other instances, they have not been here five years.  But in all other respects, the person meets the qualifications.

To answer whether a person should apply for deferred action merits some more careful consideration of the specific situation that the person finds themselves in. In one instance, when I applied for a gentleman who was already in removal proceedings, but who did not meet all of the technical requirements, I got a telephone call from USCIS stating that we should apply through these new procedures.  Of course, that particular person had no criminal record, was currently in a U.S. high school and by all accounts is a person of good moral character.  The fact that he is in removal proceedings gave us the incentive to try anything we could.

In this regard, so long as the applicant is aware of the risks, and accepts that paying the filing fee is not a guarantee of receiving the benefit, it may be worth it to try.  The choice should be made, however, after considering all of the circumstances, and discussing the risks and potential benefits with a knowledgeable immigration lawyer.

By:  William J. Kovatch, Jr.
(703) 837-8832

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