ICE's War Against the Latino Community

When word of the nationwide enforcement raids by ICE began to break about a week ago, I wanted to be able to say that this is not the time to get hysterical. I wanted to say that these occasional raids are common, and certainly happened under the Obama Administration. But as I read more and more news accounts, I cannot say that. Instead, what I am seeing is a coordinated attack on the Latino community in a modern-day which hunt to find anyone ICE can seek to remove from the United States. I see the utter demise of any sense of humanity or dignity in this nation's immigration enforcement policy. I see the Constitution being torn to shreds. 

Let's start with the change in policy itself. Under the Obama Administration, ICE was instructed to concentrate its enforcement resources on priority cases involving dangerous criminal aliens. Undocumented aliens who were here just earning money to feed their families, and who had not had brushes with the law, were given leniency. 

In his first week in office, President Trump signed three executive orders on immigration policy. In one order, the President outlined the new enforcement priorities, which included aliens who had committed acts that constitute a crime but who have not been convicted. To some degree, this seemed innocuous enough. The Immigration and Nationality Act does have a similar basis of inadmissibility. 

In a closed-door session with lawmakers, however, ICE leadership let it be known that it viewed Trump's executive order as removing the shackles imposed by the Obama Administration. Now the reference to aliens who had committed acts that constituted a crime but who had not been convicted was being interpreted to mean that any of the aliens present in the United States without valid legal status was considered a priority for enforcement. That is, instead of the two to three million Trump  believed were criminal aliens he wanted to focus on, ICE considered all eleven million undocumented aliens as fair game for removal. 

It should be noted that in this very meeting where ICE announced its interpretation of the Trump policy, certain Latino congressional representatives were turned away. That's right. Latino congressional representatives were denied the right to hear from ICE itself the new enforcement priorities that would affect their Latino constituents and their families. 

What's worse is that ICE's enforcement activities have shown an utter disregard for morality and human decency, as ICE has practically declared war on the Latino community. Let's explore just a few examples. 

In Arizona, a woman who had been reporting into ICE annually for ten years was taken into custody during her annual check-in. Within 48 hours she was removed because a decade before she used a phony Social Security number to find work. She had no history of any violent crimes. 

In Washington State, a man who had been granted protection and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals program (DACA) was taken into custody during a raid on his home targeting his father. ICE ignored the DACA protection, claiming the man had known gang affiliations. ICE's evidence of this?  A tattoo which translates into English as "peace."

In Virginia, ICE waited outside a church hypothermia shelter to stop Latino males as they left the shelter in the morning. One of the Latino males stopped was a permanent resident who is in this country legally. Obviously, ICE's marching orders were to stop all Latino males with the hope of finding one or two who would be removable. 

But the piece de resistance?  In Texas, ICE waited outside a courtroom as a woman obtained a protective order against her abusive partner. Once she left the courtroom, ICE arrested her. In all likelihood, the tip to ICE on where the woman would be was given by the abuser. 

What conclusions, then, are the Latino community supposed to take from ICE's recent actions?  First, ICE has no interest in being transparent and telling Latino political leaders what it's enforcement priorities are. Second, don't bother venturing out to seek any legal protection or to accept help from others with charitable intentions. Are you homeless and need shelter for the night?  ICE will be waiting outside the door to take you into custody in the morning. Are you an abused woman?  If you seek help in the courts, the moment you step outside of the courtroom, ICE will be there to perpetuate the abuse.  Are you a Latino male?  ICE will presume gang affiliation, especially if you have any tattoos. 

The point is that ICE's indiscriminate attacks on the Latino community must be resisted. ICE knows that due to language barriers, many Latinos present here don't know their rights.  ICE knows that many Latinos will not resistente the assertion of authority. This has to change. 

Know your rights, and understand that ICE had to act within the constraints of the Constitution. Don't open the door to ICE unless they show you a judge-issued warrant. Don't answer any questions posed by ICE. Demand your right to see a lawyer. Don't sign any papers without consulting a lawyer first. Insist on a hearing. Only by fighting back within the bounds of the legal system can we push back against ICE's assault on the Latino community. 

By: William J. Kovatch, Jr. 

For an appointment call (703) 837-8832

(571) 551-6069 (español)

Suspension of DACA Would Pose Legal Challenges for DREAMers

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Last Friday, Daniel Ramirez, who had been granted deferred action and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program, was seized by Immigration and Customs Enforcement (ICE) agents, who raided his house to arrest Ramirez's father.  Ramirez's work authorization was still valid.  But this did not deter ICE agents from seizing him, as ICE contends that Ramirez admitted to being associated with a gang.  Ramirez claims he has no gang association, and that he was pressured by ICE to make such statements.

Ramirez has now initiated suit against the Untied States' Government. But his arrest and detention should serve as a warning to the thousands of young people who have applied for, and received, protection pursuant to DACA.

DACA is simply a promise made by President Obama that his Administration would not seek the removal of young people who were brought to the United States by their parents when they were children.  The President did this by granting deferred action.  Once the President grants deferred action, the recipient is entitled to apply for legal authorization to work in the United States.  But deferred action is not a legal status.  It is simply a promise from the Government not to seek removal.

DACA was not authorized by statute.  In fact, President Obama only created DACA when Congress failed to pass the DREAM Act, which would have created a path to legal residency and possibly citizenship for the young people who were brought to this country as children, but grew up knowing America as their home.  The people who would have qualified for status under the DREAM Act are affectionately known as DREAMers.

But because DACA is not a creature of statute, it is a very fragile promise.  The President is under no obligation to extend protection pursuant to DACA once the current protection expires.  Moreover, because it is a matter of executive discretion, an applicant is unable to challenge the denial of DACA protection in U.S. courts.

But once a DREAMer has been granted DACA protection, that person has an expectation to continue to receive protection from removal until the program expires.

This is the expectation that ICE violated when it took Ramirez into custody.  Ramirez, who has no other legal immigrant status, will now face proceedings in Immigration Court where the United States will seek his removal.

In many instances, Immigration Court can grant relief from removal.  There are some programs, such as asylum or cancellation of removal, which the Immigration Court by law can grant after a hearing.  However, because DACA is not a legal program, but an exercise of executive discretion, the Immigration Courts have no power to issue a ruling on whether DACA protection was improperly suspended for any individual.

This does not leave DREAMers without a remedy.  Because DACA recipients have an expectation of a governmental benefit, that benefit cannot be rescinded arbitrarily or capriciously.  That is, DACA recipients have a due process right to have their protection honored until the expiration of the program.  But to enforce this right, DACA recipients may need to go to federal district court.

That is, if ICE arrests a person who has been granted DACA protection, and seeks that person's removal, the DACA recipient will need to file a lawsuit in a U.S. District Court alleging constitutional violations, such as due process.  Such a lawsuit is expensive and can become complicated.  In Ramirez's case, he will have to address ICE's claims that Ramirez admitted to being associated with street gangs.  There will be discover and a hearing.

The availability of such a process may not be comforting news to other DACA recipients.  Many are not in a position to spend thousands of dollars on legal expenses to fight over weak legal promise which will expire anyway in a little more than a year.  Indeed, the current Administration could be counting on that level of vulnerability to pick off DACA recipients one by one, making tenuous claims of gang association, knowing that they are forcing the DACA recipients into an expensive legal battle.  In that way, the Administration can claim that it is merely going after the "bad hombres" and highlighting its argument that President Obama overstepped his authority when he instituted DACA.  This is a position that would play well with many of President Trump's supporters.

DACA recipients need to be prepared to defend their rights.  All immigrants should know that ICE cannot issue warrants to itself that allow entry into a dwelling.  Only a judge can issue such a warrant.  Before letting ICE into your house, make sure everyone knows that they need to ask to see the warrant, and to check whether it is judge-issued.  All residents of your home should also know that they are under no obligation to answer any question posed by ICE agents, except their name.  If asked anything by ICE agents, demand your right to consult a lawyer.  Sign nothing without consulting a lawyer.  Do not be intimidated by ICE.  Spread the word.

By: William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
(571) 551-6069 (español)

Memorandum Supporting President's Deferred Action Program

The White House released the memorandum written by the Justice Department detailing the legal support for his deferred action program.  Through this memorandum, President Obama's legal counsel provides analysis on whether it is permissions for: (1) the Department of Homeland Security to prioritize its resources to target undocumented aliens who are criminals; (2) the President to issue deferred action to parents of U.S. citizens and permanent residents; and (3) the President to issue deferred action to parents of DACA recipients.

 

Interestingly, the Justice Department concludes that while it is permissible to issue deferred action to the parents of U.S. citizens and permanent residents, it would not be permissible to do so for parents of DACA recipients.  The distinction appears to lie in the fact that U.S. citizens and permanent residents have a legal status, whereas DACA recipients do not.

 

The release of this memorandum would seem to indicate that the President will not expand his deferred action program to cover the parents of DACA recipients later, as some have surmised.  To do so would clearly contradict the advice from his own Justice Department.

 

It is also interesting to note that this memorandum does not cover the spouses of U.S. citizens or permanent residents.  This is not to say that such undocumented aliens would be ineligible to receive deferred action, merely that this memorandum, and presumably the President's program, will not cover such aliens at this time.

 

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

Wkovatch@kovatchlegalservices.comn

Can the Republicans Derail Administrative Action on Immigration?

The rumors are that President Obama will announce some kind of administrative action to address the large numbers of undocumented aliens already living in the United States.  What will that action be?  While at this point we can only speculate, the best educated guess is that it will be some type of expanded deferred action program, like the one the President adopted for undocumented aliens who were brought to the United States as children.  How broadly the program will cover remains to be seen.

Republicans, emboldened by their victories in the November mid-term elections, are warning that any executive action on the issue of immigration will meet with fierce legislative resistance.  The question, however, is just what can congressional Republicans do to derail any administrative action?

The President's safest bet would be to expand his Deferred Action for Childhood Arrivals, or DACA, program.  Deferred action is not really a legal immigration status.  It is merely a promise by the Government that it will not deport someone.  Deferred action is already built into the law.  The President can grant deferred action on a case-by-case basis.  Once deferred action has been granted, the law permits the alien to apply for work authorization.  Thus, while it is not a real legal status, and cannot lead to permanent residency or citizenship, it can allow an undocumented alien the ability to work and earn money legally.

There has been a lot of talk of impeachment.  That is, if the President were to act alone and announce such a broad-based deferred action program, some Republicans believe that there would be grounds to impeach the President.  The argument is that the President would be acting contrary to law by failing to enforce it.

Impeachment, however, would be a tough sell for Republican law makers.  First, as stated above, the law gives the President the discretion on a case-by-case basis to grant deferred action.  It has traditionally been a vehicle used for humanitarian purposes.  Nothing in the law says that the President cannot define a set of criteria on which he would grant deferred action.  Thus, on a purely legal basis, impeachment is on shaky grounds to begin with.

At any rate, a Republican-led House of Representatives has already impeached the last Democratic president, Bill Clinton.  While the grounds for Clinton's impeachment may have had sounder legal grounding (perjury by the chief executive officer in a sworn deposition of a pending lawsuit), the fact is that Republicans would have an image problem if they were to impeach two Democratic presidents in a row.  That is, it would leave the Republicans open to the charge of being willing to undermine the democratic process, instead of working together towards a solution to the nation's immigration problem.  (To those who would argue that the President is the one ignoring the democratic process by acting alone, it should be noted that the Republican-led House of Representatives has had numerous chances over the course of the past two years to propose and pass a serious immigration reform package.  They have failed to do so.)

The next strategy that appears to be gaining popularity is simply to de-fund the President's program.  This solution, some argue, would not require a shut-down of the Government, because the Republicans can just pass a continuing resolution that contains all of the funds necessary to have the Government operate, minus the funds needed to operate the President's program.

This strategy has two fatal flaws.  First, it fails to recognize how U.S. Citizenship and Immigration Services ("USCIS"), the agency that would be charged with administering any program the President adopts, is funded.  USCIS is not funded as a line item in the budget.  To the contrary, USCIS is funded through user files.  That is, every petition or application for an immigration benefit involves some sort of filing fee.  As it is, those filing fees are pretty high.  To become a permanent resident, for example, involves filings fees of almost $1,500.

All DACA applicants had to pay a filing fee of $465.  That included the cost of processing the DACA application itself, the work authorization application and the background check.  Thus, so long as the Administration sets the filing fee at an appropriate level, what Congress does with the budget will have little impact on the President's program.

The second problem with de-funding the President's program is that it assumes that the President will sit back and let it happen.  In our republic, all legislation, including the budget, has to be passed by both houses of Congress and signed by the President.  Bills concerning spending must originate in the House of Representatives.  But, if the House passes a continuing resolution that funds some, but not all, of the Government, the President could veto it.  The House tried this a year ago in an effort to de-fund Obamacare.  In the end, it didn't work.  Worse yet, the Republicans were politically damaged and had to spend the next few months repairing the damage before the November elections.  (It is important to note  that redistricting played a huge role in the Republican electoral victory.  That is, state legislatures redrew congressional districts in such a way as to create a large number of districts with very conservative majorities.  The result was that many very conservative candidates did well in the primaries and rode the redistricting wave to victory in the general election.  In a presidential election, the Republicans will have to face a national electorate, which will not likely be as conservative as the smaller congressional races.)

In the end, there may be very little the Republicans can do to prevent the President from implementing a carefully constructed program to address the presence of undocumented aliens.  The risks to the Republicans are great, considering the national electorate they will face in the 2016 elections.  A better course may be for the Republicans to offer a constructive counter-solution, one that involves more than simply building bigger walls and a push for indiscriminate deportations.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Deferred Action Recipients May Get Preferential Treatment in Immigration Reform

For those who waited to file an application for the President's Deferred Action for Childhood Arrivals (DACA) program, this may be the time to do it.  Under the current version of the Senate bill, those who received deferred action under the DACA program may automatically qualify for Registered Provisional Immigrant (RPI) status.  The bill gives the Secretary of Homeland Security the discretion to grant RPI status to DACA recipients who have not otherwise engaged in conduct that would render the DACA recipient ineligible for RPI status.  In fact, those who received DACA benefits may be immediately eligible for citizenship upon becoming a permanent resident.

DACA is the program announced by the President last year where certain young people who entered the United States before the age of 16 could be granted a reprieve from deportation and work authorization.  The requirements for DACA eligibility can be found here.

Current estimates are predicting passage of the bill in the Senate with as many as 70 votes.  How the bill will fare in the House, which is controlled by Republicans, remains to be seen.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimigrationlaw.com

Updated Deferred Action for Childhood Arrivals Statistics

USCIS has released updated statistics on the Deferred Action for Childhood Arrivals program.  Through November 15th, a total of about 309,000 applications have been received.  About 53,000 have been approved.

There was a slight increase in the number of applications between September, where almost 105,000 aliens applied, and October, where about 113,000 applied.  In November, where data for only half the month is available, a little less that 44,000 applications were submitted.  November is therefore on track for around 90,000 applications.

It has been estimated that 1.4 million people present in the United States meet the qualifications of the President's program.  This would mean that to date, a little more than 20% of those believed to be eligible have applied.

The New York Times notes that the agency has not released how many applications, if any, have been denied.

USCIS Statistics can be found at this link.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Election Results Bring Greater Certainty to Deferred Action Program

The re-election of President Obama may spark a greater number of applications for deferred action.  The Deferred Action for Childhood Arrivals program offered a promise to certain young aliens present in the United States illegally that the Government would not seek their removal or deportation.  The program also offered an opportunity to receive the legal authorization to work in the United States.

The President's program would provide this promise for two years.  At the end of the two years, deferred action could be renewed.  However, the program was the result of an exercise of executive discretion, and not law.  This meant that the program could be rescinded at any time.  Indeed, the grants of deferred action themselves could be rescinded.

President Obama's opponent, Mitt Romney, had expressed that he would terminate the program if he were elected.  However, he promised that any grants of deferred action under the program before his presidency would be honored.

Romney's campaign statements, and the close presidential race, left many uncertain as to the future of the deferred action program.  Would the information disclosed through the application process be used for enforcement purposes once the program had been terminated?  Would something else replace the program, or would the Federal Government pursue enforcement more vigorously?

The election should allay some fears.  Already, thousands of applicants have been granted deferred action.  However, only a small fraction of the estimated number of those aliens who could potentially benefit have actually applied.  With a greater certainty that the program will likely be around for a few years longer, this may prompt those who were hesitant to apply.

Of course, before applying, it is a good idea to consult with a legal professional knowledgeable of the program and of the risks and benefits of applying.

Here is an article discussing the greater certainty some feel about the deferred action program.

Guidelines on the deferred action program can be found on the USCIS website.

More information on deferred action can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Loans to Apply for Deferred Action?

According to Fox News Latino, an organization in Los Angeles is making loans to immigrants who want to apply for the President's Deferred Action for Childhood Arrivals program.  Fox reports that the Binational Front of Indigenous Organizations (or Frente Indigena de  Organizaciones Binacionales -- FIOB) is offering loans of up to $1,000 to complete the application process.  To qualify, according to Fox, the immigrant must show that they have completed the forms and that they cannot afford the $465 fee.

A search of the FIOB website, http://fiob.org/, turns up no information on the loans.

Presumably, the $1,000 loan would cover the application fee, mailing costs, copying costs and a lawyer's fee.

The Fox article makes no mention of whether the offer for such loans is limited to residents of the Los Angeles area.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Social Security Numbers may be a Tricky Issue for Some Deferred Action for Childhood Arrivals Applicants

Those who apply for benefits under the President's Deferred Action for Childhood Arrivals program may face a tricky question when it comes to completing the application forms.  Both the form I-821D and the I-765 ask for the applicant's Social Security number.  The issue is that for many who have been residing in this country without legal immigration status, they may likely have been working illegally as well.  In some instances, in order to get the work, they may have been using a fake Social Security number.

As if anticipating this problems, the USCIS Frequently Asked Questions website comments that applicants are to disclose only the official Social Security number issued to the applicant by the Social Security Administration.  That is, disclose only your own Social Security number, and not any other number you may have been using in order to obtain work.

The potential trap here is that if a person uses a Social Security number that belongs to someone else, and does so knowing that the number belongs to someone else, they that amounts to the crime of aggravated identity theft.  If your application for deferred action reveals information showing that you committed aggravated identity theft, then it is very likely that USCIS will refer your case to ICE for possible removal proceedings.

Those who have used other Social Security numbers need to be very careful if they choose to apply for deferred action.  Your best bet is to consult with a lawyer to make sure you are aware of the risks. 

I go into more detail about Social Security numbers and deferred action in this article.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Deferred Action for Childhood Arrivals (DREAMers) and Driver's Licenses

Under the President's program, deferred action can provide a person with a promise not to be deported and work authorization.  But, will it allow recipients to get a driver's license.

In general, that issue depends on state law.  Arizona and Michigan have both announced that they will not issue driver's licenses to those who receive deferred action.

What about Virginia?  Section 46.2-328.1 of the Code of Virginia clearly provides that anyone in an approved deferred action status may be issued a driver's license.  This law was on the books long before the President's program.

In August, the Virginia DMV confirmed that it was going to comply with Virginia law and issue driver's licenses to those who receive deferred action under the President's program.

The ACLU is already planning a lawsuit to challenge the decision to deny driver's license to DREAMers in Arizona.  There may be a valid federalism claim.  That is, if the U.S. Government has express authority over immigration issues, and if federal law is the supreme law of the land, then the states cannot do any action to countermand federal action.  We'll watch the Arizona case and see how that plays out.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Schools Busy Filling Requests for Transcripts for Deferred Action for Childhood Arrivals Applicants

Schools across the country are fielding an increase in requests for transcripts.  This is fueled by the requirement under the Deferred Action for Childhood Arrival (DACA or Deferred Action for DREAMers) that the applicant either have a diploma or GED, or be currently in school.  San Diego has even opened a special center specifically for the purpose of handling the increase in transcript requests.

San Diego reports a backlog in complying with the requests.  So far, there is no deadline on when a person can apply for deferred action under this program.  But, should there be a change in Administration, and with Republican presidential candidate Mitt Romney promising to end the program if he were to take office, there may be more urgency for potential applicants to obtain the documentation sooner and submit the applications while President Obama is still in office.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Deferred Action for Childhood Arrivals: Meeting the Education Requirements

This article claims that there are many undocumented aliens who cannot qualify for the President's Deferred Action for Childhood Arrivals (DACA or Deferred Actin for DREAMers) program because they never finished high school, and are finding it difficult to enroll in a class to work towards a GED.  One problem, according to the article, is that some states, such as Arizona, prohibit undocumented aliens from taking the free GED classes.

Regarding the education requirements, the USCIS guidelines state that the applicant must currently be in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development (GED) certificate.

USCIS goes into more detail in its Frequently Asked Questions:

Q2: Who is considered to be “currently in school” under the guidelines?
A2: To be considered “currently in school” under the guidelines, you must be enrolled in:

• a public or private elementary school, junior high or middle school, high school, or secondary school;
• an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
• an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.

Such education, literacy, or career training programs include, but are not limited to, programs funded, in whole or in part, by federal or state grants. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations.

In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.

The "currently in school" criteria appears to be very broad. It can include literacy classes, career training, job training and an education program assisting students in passing the GED exam.  Given the broad definition of "currently in school," an applicant who otherwise dropped out of school would be wise to enroll in some class, be it an English literacy class or some form of vocational training, in order to be able to check this box.

But even if an applicant can't say that they are currently in school, that may not necessarily be the end of the quest to acquire deferred action.  As I posted earlier, the USCIS website appears to indicate that the agency will be on the lookout for candidates who may not meet all of the stated criteria, but who otherwise warrant the exercise of deferred action.  Thus, if an alien does not have a diploma or GED, and is not currently enrolled in school, that does not mean that the alien cannot qualify for deferred action of some sort.  It may mean that the applicant may need to pay up on mitigating factors in their life to convince USCIS to grant deferred action.  Such factors could include a U.S. citizen child who requires medical treatment.  It could include the need to stay in the United States to care for a sick parent or grandparent.  It could include clear evidence of the applicant's good moral character.

The potential applicant, then, should consider all of the risks, all of the potential benefits, and all of the angles that can be played up, to decide whether it is worth paying the $465 filing fee to apply for deferred action under this program.  Indeed, with the political climate the way it is, and with Republican presidential candidate Mitt Romney pledging to end the Deferred Action for Childhood Arrivals program, it may be worth it for an undocumented alien to take a shot, risk the filing fee, and try to obtain the benefit before a new Administration takes office.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.cominfo@kovatchimmigrationlaw.com

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