Suspension of DACA Would Pose Legal Challenges for DREAMers

Add caption

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)

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

American Immigration Center on Who the DREAMers Are

The Immigration Policy Center of the American Immigration Council has issued its detailed estimates of exactly who the DREAMers are.

DREAMers are young people who have been brought into the United States at a young age, and have grown up knowing nowhere but the United States as home.  The DREAMers have no legal immigration status.  But, many have attended school in the United States and hold U.S. high school diplomas.

The term "DREAMers" comes from the DREAM Act (Development, Relief, and Education for Alien Minors), a proposal that was introduced in Congress to provide a pathway for legal status to these individuals.  In 2010, the DREAM Act was passed by the U.S. House of Representatives in 2010, but filibustered in the Senate.  The filibuster effectively killed the bill, despite the fact that a majority of Senators, 55, supported it.

The American Immigration Council provides a detailed analysis of where the DREAMers come from, and where they are in the United States.  The DREAMers are those who could potentially benefit from the President's Deferred Action for Childhood Arrivals program.

The American Immigration Council's DREAMers estimates can be found here.

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

Romney's Position on Immigration Spurring Some to Apply for Deferred Action Now

Last week, I reported that Republican presidential candidate Mitt Romney had announced that he would not seek the deportation of those who apply for deferred action for childhood arrivals, and are granted the benefit.  But, that he would not continue with the program.  I noted that this would create an incentive to apply for deferred action now, before there is a possible change of administrations.

In this article, it is reported that Romney's position on immigration issues has spurred some undocumented aliens who qualify for the program to apply now.

For some, applying now may make some sense.  If Romney were to become president, and live up to his promises, then those who have been granted deferred action and a work permit would be safe from deportation for at least two years.  With recent public statements by Republican Senator Marco Rubio, there appears to be some hope that even with a Republican Congress that immigration reform is a possibility.  If you consider that the Government's strained resources have already caused ICE to concentrate its efforts on criminal cases, then it seems that the risk to those who do not have a criminal record is fairly low.

I have also stated that for those who are already in removal/deportation proceedings, you might as well move forward with an application, even if you do not meet all of the criteria.  The main reason is that the worst thing that could happen, that you would face deportation proceedings, has already happened.  And, it should be kept in mind that although the President has defined this particular set of undocumented aliens as a class of people to whom he wants to grant deferred action, he still has the discretion to grant it in other cases of merit.

Whether to apply requires a weighing of all of the risks and possible benefits.  For some, the prospect of having work authorization, and being able to accept employment legally is sufficient to take the risks, and apply.  For the best advice, you should consult with an immigration lawyer before applying to discuss the risks and benefits.

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