Attorney Desmond P. FitzGerald speaks about
the new Obama Deferred Action policy for young immigrants or
childhood arrivals (DACA) on interview with Dr. Luisa Medrano
of Perfil Latino.
anticipated, the Deferred Action Program for Young Immigrants or Childhood
Arrivals (DACA) started August 15, 2012 or 60 days after President
Obama’s announced its creation (click
here for eligibility requirements). We are making appointments
for those who want to hire legal help to review eligibility and to
prepare the application and supporting documentation (this is particularly
recommended for those who have had criminal charges in the past and
need to make sure that they are eligible before applying, or to see
if there is something that can be done to change the disposition of
a criminal case, and for those who have spent time outside the US
during the time they should have remained in the US to be eligible).
We want to encourage everyone
who is eligible to apply for this benefit as it is an opportunity
for the immigrant community to demonstrate the value and contributions
that they are capable of making to the US if given permission to work
and live in the U.S. and hopefully encourage lawmakers to pass positive
Below are some additional
questions and answers regarding the Deferred Action Program for young
immigrants or Childhood Arrivals (view
more questions on DACA from our earlier newsletter, including eligibility
requirements and documentation needed):
What should I do if I have been involved in any criminal proceeding?
It is very important that
before you apply for the Deferred Action
Program for Young Immigrants or Childhood Arrivals, that you
have an attorney experienced in both immigration and criminal defense
review all your records pertaining to the matter, including but not
limited to police reports, court records, docket sheets, probation
reports, etc. There are certain situations in which we can go back
to court and reopen a case and/or modify a disposition so that it
does not have a negative impact for immigration purposes and the person
may qualify for Deferred Action.
Can immediate family members
or dependents get DACA as well?
No, unless they satisfy
the eligibility criteria for Deferred Action for Young Immigrants
or Childhood Arrivals (DACA) themselves.
Does Deferred Action for Young Immigrants
or Childhood Arrivals result in permanent lawful status for those
who receive it?
No. DACA does not provide
permanent lawful status nor a pathway towards it. Only the congress
can create or modify laws to confer the right to permanent lawful
Does this policy apply to those who have had their case reviewed under the case by case review process and have not been offered administrative closure, or have either accepted or declined an offer of administrative closure?
Yes, if they meet the eligibility
criteria outlined above for DACA.
If DACA is denied will
the person be placed in removal/deportation proceedings?
Individuals whose request for Deferred
Action for Young Immigrants or Childhood Arrivals is denied will be
referred to ICE only if they have a criminal conviction or there is
a finding of fraud in their request. ICE will apply its existing Notice
to Appear guidance governing USCIS’s referral of cases to ICE.
Will there be any exceptions for the requirement that an individual must have resided in the US for at least 5 years?
Brief, casual and innocent
absences will not violate this requirement. If
you were absent from the United States for any period of time, your
absence will be considered brief, casual, and innocent, if it was
before August 15, 2012, and:
- The absence
was short and reasonably calculated to accomplish the purpose for
- The absence
was not because of an order of exclusion, deportation, or removal;
- The absence
was not because of an order of voluntary departure, or an administrative
grant of voluntary departure before you were placed in exclusion,
deportation, or removal proceedings; and
- The purpose
of the absence and/or your actions while outside the United States
were not contrary to law.
If I receive Deferred Action for
Young Immigrants or Childhood Arrivals will I be allowed to travel
outside the US?
may be possible only if you are approved for advanced parole, for
which you can apply only after you have been granted Deferred Action
for Childhood Arrivals. You should not travel outside the US after
August 15, 2012 or before you are granted Advanced Parole, as you
will not be considered for Deferred Action under this process.
are in unlawful status and/or are currently in removal proceedings,
and you leave the United States without a grant of advance parole,
you will be deemed to have removed yourself and will be subject to
any applicable grounds of inadmissibility if you seek to return.
Can a denial of Deferred Action for
Young Immigrants or Childhood Arrivals be appealed?
No, but a process has been
established to request a review if it is believed that the case was
What steps will the USCIS
and ICE take to prevent fraud in the Deferred Action for Young Immigrants
or Childhood Arrivals process?
Anyone who knowingly provides incorrect information or omits facts to the USCIS or ICE to obtain Deferred Action or work authorization will be treated as an immigration enforcement priority and be subjected to criminal prosecution and/or deportation from the US.