Dream to Achieve: Comparison of Proposals to Address Young Undocumented Aliens

In the wake of the presidential elections, many in the Republican Party have shown a greater willingness to consider comprehensive immigration reform. In particular, many have seen a softening of the GOP's stance on immigration reform necessary in light of the overwhelming majority of Latino voters who supported President Obama.

Nonetheless, the Republicans may not be in complete uniformity on what shape comprehensive immigration reform should take.  One issue that may prove to be the most difficult to address could be what to do about the many undocumented aliens already in the country.  The issue of creating a guest worker program, with some pathway to citizenship, may complicate the drive for comprehensive reform.

In the meantime, there appears to be some agreement that young people, brought to this country as children and who have grown up as if they were Americans, deserve some form of relief.  This is on the heals of the President's Deferred Action for Childhood Arrivals program, which could grant a promise not to deport such young people who meet certain qualifications.  The program has its roots in the DREAM Act, which failed in 2010 when a Senate filibuster prevented the bill from coming up for a vote.

At least two Republicans have been working on a similar bill over the past year.  Senators Kay Bailey Hutchison and Jon Kyl, both of whom will retire in January, have been working on the Achieve Act as an alternative to the DREAM Act.  There appears to be a movement to try to bring the Achieve Act up for a vote before January.

The Achieve Act, however, has some major differences in qualifications when compared to the President's deferred action program.  If the Achieve Act were to pass, it could cause a number of people, who have applied for and already received deferred action, out in the cold as far as permanent relief is concerned.

The requirements for relief under the Achieve Act are:  (1) the applicant must have completed high-school and be admitted to college or earned a college degree, or completed high school and be enlisted in or have completed four years of military service; (2) the applicant must have entered the country before the age of 14; (3) the applicant must have lived in the U.S. continuously for five years; (4) the applicant must have not committed a felony, two misdemeanors with a jail term of over 30 days, or a crime of moral turpitude; (5) the applicant must not be subject to a final order of removal; (6) the applicant must pay a $525 fee; and (7) the applicant must be under the age of 28 (or 32 if they have a bachelor's degree from a U.S. university).

The major differences are:  (1) the deferred action program only requires that the applicant be enrolled in a U.S school, have a high school diploma, have a GED or be enrolled in classes to work toward a GED; (2) the deferred action program only requires that the applicant enter the United State before age 16; and (3) the deferred action program only requires that the applicant be under age 31 as of June 15, 2012.

With these key differences, there are several young people who would qualify under the deferred action program,  who would not qualify under the Achieve Act.  People who entered the United States after age 14, but before age 16, for example, would be out of luck under the Achieve Act.  Likewise, people who have a high school diploma, but who chose not to go on to higher education would be left out.  Finally, the cut-off age is lower for the Achieve Act.

It is unclear why the Republican proposal has stricter qualification requirements than the current deferred action program.  It may be explained by the fact that the bill was drafted before the President announced the program.  Nonetheless, equity would argue that the bill be modified to cover all of those covered by the deferred action program.  Whether that will happen, or the Republicans stick to their guns remains to be seen.

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

Kay Bailey Hutchison, of Texas, and Jon Kyl, of Arizona

Read more: http://www.foxnews.com/politics/2012/11/16/republicans-mull-own-version-dream-act-vote-on-achieve-act-by-january/#ixzz2Cte3l3Wt

Kay Bailey Hutchison, of Texas, and Jon Kyl, of Arizona

Read more: http://www.foxnews.com/politics/2012/11/16/republicans-mull-own-version-dream-act-vote-on-achieve-act-by-january/#ixzz2Cte3l3Wt

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

Some Expressing Relief Upon Receiving Deferred Action

Some recipients under the President's Deferred Action for Childhood Arrivals program are expressing relief.  But, an issue that this article raises towards the end, questions remain concerning a permanent solution that could lead toward permanent residency and citizenship.

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

Deferred Action for Childhood Arrivals: American Immigration Council Practice Advisory

The Legal Action Center of the American Immigration Center has issued a practice advisory on the President's Deferred Action for Childhood Arrivals (DACA or Deferred Action for DREAMers) program.  Practice advisories are generally in depth legal analyses of a specific topic.  The American Immigration Council publishes these advisories to assist immigration lawyers in their practice.

The practice advisory, issued on October 25, 2012, provides a thorough discussion of the legal issues surrounding the deferred action program, from eligibility to the legal issues surrounding the application process.

One such legal issues concerns the disclosure of Social Security numbers.  Applicants are required to disclose their Social Security numbers both on Form I-821D and I-765.  USCIS has made it clear that the applicant should disclose only that Social Security number officially issued to the applicant by the Social Security Administration.  The American Immigration Council states that applicants should be careful about what evidence they submit to show physical presence, in order to avoid disclosing the use of other Social Security numbers.

The practice advisory can be found here.

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

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

Many Are Reluctant to Apply for Deferred Action for Childhood Arrivals

An immigration attorney in Utah reports that the response to the deferred action for childhood arrivals (DREAMers) program has been "tepid."  His belief is that the program is too temporary.  Many who would qualify for the program are afraid, despite assurances from the Government, that the information collected will be used in the future to deport them.

These fears are real concerns.  The program is not based on any law.  It is an exercise of executive discretion.  As such, it can be rescinded.  Still, Republican presidential candidate Mitt Romney has announced that he would not attempt to deport those who are granted deferred action under President Obama's program.  But, he would not renew the program either.

One reality facing the U.S. Government is that its immigration enforcement resources are strained.  This is one reason why the President instructed Immigrations and Customs Enforcement to concentrate on criminal issues in deciding how to allocate its resources.  Based on that, it is not likely that the Government has the resources to deport everyone who applies for deferred action.

Whether to apply is a personal decision that should be based on the risks and the potential benefits.  If an undocumented alien is on the fence, then he or she should consult with an attorney to discuss the risks and likely benefits.

http://www.deseretnews.com/article/865564220/Deferred-action-for-illegal-immigrants-stymied-by-fear.html

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

Deferred Action for Childhood Arrivals (DREAMers): Potential Applicants with Criminal Records Must Give Careful Consideration

Those who wish to apply for deferred action for childhood arrivals who have criminal records must consider the matter carefully before applying.  On one hand, USCIS is saying that some criminal convictions will not disqualify a person from receiving deferred action.  However, certain criminal convictions will not only make a person ineligible for deferred action for childhood arrivals, they may cause an applicant to be referred to U.S. Immigration and Customs Enforcement for removal proceedings.

USCIS has the authority to issue a Notice to Appear, which begins a removal proceeding.  USCIS can also refer a case to ICE for a decision on whether to begin removal proceedings.  At times, when an alien files an application or petition, such as an application for naturalization, USCIS will learn of the applicant's criminal record.  In such cases, the alien risks having his or her case referred to ICE for a decision on whether to begin removal proceedings.

USCIS issued guidance in November of 2011 on when it would refer a case to ICE for possible removal proceedings.  The guidance can be found at this link.  In general, if a crime qualifies as an "aggravated felony" under U.S. immigration law, concerns street gangs, or involves violating another person's human rights, then USCIS will refer the matter to ICE.

Turning back to eligibility for deferred action, USCIS guidelines say that an applicant must not have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors.

USCIS provides further explanation on its Frequently Asked Questions page.  First, USCIS states that expunged convictions and juvenile convictions will not automatically disqualify a person for consideration for deferred action.  Rather, an applicant with such convictions will have his or her case assessed on a case-by-case basis.  The point here is that if there is a conviction for a felony or a significant misdemeanor which was either a juvenile conviction, or was later expunged, the applicant should be prepared to address the particular facts and circumstance on his or her case to show that USCIS should still exercise its discretion.  This can include the facts and circumstances surrounding the conviction itself, as well as any hardships that another person would face if deferred action were not granted.  An example could be a U.S. citizen child of the applicant, who has a significant health concern.

USCIS warns further that if the applicant was juvenile at the time of conviction, but was tried as an adult, then the conviction will be treated as an adult conviction.

A felony is defined as a crime punishable by imprisonment for a term exceeding one year.  Notice that USCIS uses the word "punishable" and not "punished."  This would tend to show that even if a person was actually punished for less than a year, if the possible sentence for the crime exceeded one year, then USCIS would consider the offense a felony.

As for significant misdemeanors, some categories are clear.  Domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking and driving under the influence are all considered significant misdemeanors, not matter what sentence was actually imposed.

For other misdemeanors, they will be considered significant if they were punished by imprisonment for more than 90 days.  When considering the term of imprisonment in this instance, USCIS states that it will not consider any time that was suspended.  This is a departure from other areas of immigration law, where a term of imprisonment includes the entire sentence, even if part of the sentence was suspended.

USCIS states that traffic infractions will not be considered misdemeanors.  However, it warns that if there is a pattern of such infractions an alien's entire offense record will be examined to determine whether the exercise of discretion is warranted.  In making this assertion, USCIS makes reference to driving under the influence.  This appears to give a clue that if there is a history of traffic infractions, which may not themselves rise to the level of driving under the influence, but which shows that alcohol was involved, USCIS may consider such cases as evidence of alcoholism, and thus deny deferred action on that basis.

Whether or not a misdemeanor is considered significant, if an applicant has been convicted of three or more, then he or she will not be considered for deferred action.  On this point, USCIS indicates that if there are multiple misdemeanor convictions occurring on the same date and arising out of the same act, omission, or scheme of misconduct, then they may not necessarily be considered more than one conviction.

Finally, some states have criminalized certain immigration-related offenses.  Illegal presence alone, for example, is not a federal crime.  But some states have moved to make it a state crime.  Some states and localities have also attempted to criminalize employing or leasing to a person known to lack a legal immigration status.  USCIS provides that convictions for felonies or misdemeanors of immigration-related crimes will not disqualify a person for deferred action.

A person who wants to apply for deferred action, but who has a criminal conviction should consult with a lawyer, and give careful consideration before making such an application.

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

Romney Pledges Not to Deport Those Granted Deferred Action

In a somewhat confusing turn of events, Republican presidential candidate Mitt Romney stated that he would not deport those who received deferred action under the President's Deferred Action for Childhood Arrivals (DREAMers) program.  But, he would not continue with the program.

The waters of exactly where the candidate and his party stand on immigration issues were somewhat muddied further when U.S. Senator from Florida, Marco Rubio, stated that Romney wanted to find a more permanent solution for the young people who would qualify for deferred action under the program.

Both Romney and Rubio emphasized that it would not be fair to yank deferred action away from those who had already paid the filing fee and received the benefit.

Many who would otherwise benefit from the deferred action program have been reluctant to apply, citing the uncertainty involved.  Deferred action is a promise from the Government that it would not seek to deport an undocumented immigrant.  But, it does not lead to permanent residency or citizenship.  Moreover, it is not based on any new law, but on the discretion of the President to decide which cases get brought to Immigration Court.  If Romney were to beat Obama, then there would be no guarantee that the grants of deferred action would continue.

Romney's statements on the issue do create something of an incentive to apply for deferred action now, and not wait until after the election.  With Romney pledging not to deport those who received the benefit, but then saying that he would not continue with the program, those undocumented aliens looking for legal work authorization may be wise to submit their applications now, before a Romney Administration has a chance to terminate the program.

On the other hand, Romney's statements could be seen nothing more as a campaign promise.

Articles on Romeny's and Rubio's statements can be found here:

http://www.latimes.com/news/politics/la-pn-romney-immigrant-deportations-ban-20121002,0,5777536.story

http://www.latimes.com/news/politics/la-pn-rubio-dream-act-romney-20121002,0,2181168.story

http://www.boston.com/travel/destinations/2012/10/03/romney-would-end-obama-immigration-policy/8u4PI6NaVX75xTGlVNeEIN/story.html

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

USCIS Deferred Action for Childhood Arrivals (DREAMers) Statistics

USCIS published statistics concerning the deferred action for childhood arrival (DREAMers) programs.  Through September 13, 2012, a little more than 82,000 applications had been received.  Of those, 29 had been approved.

The official statistics can be found here.