DACA – BEYOND THE FAQ’S

AILA – Spring Conference

April 24, 2014

Liz Cedillo-Pereira

mecp@cpimmigrationlaw.com

Nancy Falgout

nfalgout@nancyfalgout.com

WHAT IS THE DEFERRED ACTION?

It is an exercise of Prosecutorial Discretion from the Department of Homeland Security that allows certain undocumented individuals to apply for a work permit in the U.S.A. and prevent their deportation--as long as they meet specific requirements.

GREEN CARD?

Is Deferred Action a Green Card? No, this is only a temporary stop gap and does not grant permanent legal status to anyone.

.

WHO QUALIFIES?

Requirements:

1.Age at entry

2.Continuous Presence in the U.S.

3.Status

4.Education

5.Good Moral Character

6.Age at announcement

7.Presence in U.S.

Who qualifies for a Deferred Act

REQUIREMENT 1 – AGE @ ARRIVAL

Arrived in the U.S. under the age of 16

“Established Residence”

REQUIREMENT 2 – CONTINUOUS PRESENCE

Continuously resided in the U.S. for at least 5 years prior to June 15, 2012 and

Not impacted by brief, casual, innocent absence

Absence not due to order of exclusion, deportation or removal, voluntary departure

Actions during absence not contrary to law

REQUIREMENT 3 – UNDER 31

On June 15, 2012, (Day DACA announcement was made, person had to be under 31 years of age

REQUIREMENT 4 – STATUS

Entered without inspection before June 15, 2012 or lawful immigration status expired as of June 15, 2012

REQUIREMENT 5 – EDUCATION

“currently be in school” or

have graduated from high school

or

have a GED

or

be an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.A.

EDUCATION

Currently in school:

GED

ESL

Literacy

Job Training Programs Http://www.twc.state.tx.us/svcs/adultlit/adult-basic-education.html

Texas Center for Advancement of Literacy and Learning

REQUIREMENT 6 – CRIMINAL ISSUES

Not have been convicted of

a felony offense

a "significant” misdemeanor offense, or

3 or more non significant misdemeanors, or

pose a threat to national security or public safety;

DWI

Domestic Violence

Theft?

Controlled Substance Violations ?

REQUIREMENT 7 -PRESENCE

Presence in U.S. on June 15, 2012 is required.

http://abcnews.go.com/Politics/video/chelsea-clinton-hilary-clinton-glass-ceilings-event-teenage-23379811

WHO CAN FILE FOR THE DEFERRED ACTION?

The deferred action is available to:

those in immigration proceedings

those with final removal orders

those who apply affirmatively.

DACA STATS 2012-2014 FIRST QUARTER

NATIONAL DACA NUMBERS

States With Highest Numbers

State Accepted

Approved

California 174,241 153,571

Texas 100,061 83,226

New York 33,936 30,008

Florida 25,720 20,565

Arizona 21,625 18,981

DACA is transforming young lives.

DACA Quarterly Report 2/6/2014 – U.S. Citizenship & Immigration Services

DACA NUANCES

DACA may be granted despite existing grounds of inadmissibility or deportability

Criminal grounds False Claims or other Misrepresentation 3- and 10- year Bars Other grounds of Inadmissibility

CRIMINAL GROUNDS

DACA

Felony /Significant Misdemeanor

DWI

Domestic Violence

Immigration Law

CIMTs

Possession of Controlled Substance

FALSE CLAIMS

DACA

Not questioned

Immigration Law

No waiver in most instances

3- AND 10- YEAR BAR

DACA

Stops accrual of unlawful presence

File while under 18 y/o

File ICE renewals

Immigration Law

Unlawful presence may be triggered

Advance Parole

REMOVAL, VR ORDERS

DACA

Qualified to apply for DACA notwithstanding removal order but review continuous presence

Immigration Law

Remain subject to court jurisdiction and need for filing motion to reopen for filings beyond DACA

DACA & ADJUSTMENT OF STATUS

Adjustment of Status with DACA

Matter of Arrabella and Yerabelly, 25 I & N Dec. 771 (BIA 2012)

Two adjustment applicants left pursuant to advance parole after accruing more than one year of unlawful presence. BIA held that advance parole saved them from the sting of the unlawfulp presence bar and reversed U.S. C.I.S. determination.

Same reasoning apply for those with DACA who travel abroad pursuant to advance parole?

ANATOMY OF A DACA

Ben comes to see you for an immigration consultation concerning an I-130 his dad filed on his behalf.

Facts:

Dad is a LPR

Ben’s DOB: June 15, 1981

Ben entered in 2002

With inspection

Went to school

But could not pass the exit exam

Returned to Mexico

CASE OF BEN

Ben came back to US Ben returned to US on June 1, 2007

Received a high school diploma

Ben pled guilty to possession of marijuana in 2007

Ben worked at Baskin Robbins

Ben has a girlfriend who is a LPR and has a child

ANATOMY OF A DACA

Does Ben qualify for DACA?Could Ben become eligible? How does Ben’s immigration & criminal history impact his case?

MOVING FORWARD WITH DACA

Employment rights

Driver’s license

Social Security Cards

Credits under EITC

US CIS RENEWAL PROCESS

New dual use form due out in late May 2014

www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process

File the revised version of Form I-821D,Form I-765, I-765WS, Worksheet

New Dual-use form for both initial and renewal filers and will contain modified questions pertaining to each situation.

US CIS RENEWAL PROCESS

Submit DACA renewal request package approximately 120 days (or 4 months) before current period of DACA expires. Requests made earlier than 150 days (or 5 months) before that expiration date to be rejected.

Only need to submit new documents pertaining to removal proceedings or criminal history not already submitted to USCIS.

No need to re-submit documents already submitted with previous DACA request that was approved

US ICE RENEWAL PROCESS

Need for renewal with complete packet before expiration to avoid accrual of unlawful presence

DACA BY THE NUMBERS

With the positive benefits,

why have over 46,000 yet to For DACA in Texas?

BARRIERS TO APPLYING FOR DACA

Possible Barriers:

Lack of Information on DACA Misinformation on DACA Requirements Access to legal aide Concern of Deportation for themselves and loved ones Lack of parental permission Difficulty to Afford Filing Fees Societal Stigma Waiting for immigration reform Other Reasons

AILA ADVOCACY

Pocket DACA - download and share ap

Dream Defenders – take pro bono cases

AILA ADVOCACY

Upcoming “Texas DACA Day” on August 16th – Participate in legal

clinics throughout the state of Texas

Stay informed starting in May 2014 @

http://texaslawhelp.org/resource/deferred-action-for-childhood-arrivals-free-l?ref=Nbj9u

and Univision webpage: www. univisiondallas.com.  

THANK YOUGRACIAS

NO ENDING UNTIL DREAM ACT PASSES