Deferred Action for Childhood Arrivals–DACA Part 2 (August 2012)

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.

As anticipated, the Deferred Action Program for Young Immigrants or Childhood
Arrivals (DACA) started August 15, 2012 or 60 days after PresidentObama’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 immigration reform.

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 status.

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:

1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation, or removal;
   
3. 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
4. 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?

This 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.

Note:
If you 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 mistakenly denied.

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.