More on DACA - -Documentation and Crimes

USCIS begins accepting applications today for Deferred Action for Childhood Arrivals (DACA).  The process seems relatively straightforward, with a couple of significant caveats.  Documenting the application is central to its success and obtaining original evidence (as opposed to secondary evidence) is paramount.

Also, if an applicant has a criminal history of any kind, they need to see a competent lawyer.  I fear that many applicants with what they believe are minor criminal histories will file, will be denied, may be detained, and and then will be placed in removal proceedings.  USCIS has created a new category of crime -- "significant misdemeanors" -- for this process. 

I have seen youtube videos and websites telling applicants that they do not need a lawyer.  I think that they are wrong.  At a minimum, every potential applicant needs to consider whether or not participation in this program helps their long term goals.  Any potential applicant with a criminal history needs a more serious evaluation as to whether filing for DACA will actually cause more problems for him or her.

I am sure there will be more to write about as the process unfolds.  I hope to write more in depth on the criminal aspect in the future.

Application period for Deferred Action for Childhood Arrivals begins August 15, 2012

USCIS has released forms and a memorandum for DACA -- Deferred Action for Childhood Arrivals.  Information from USCIS can be found here.

If you are interested in filing for deferred action, we strongly advise that you seek the advice of an attorney or a reputable legal clinic.  It is important to weigh the benefits of filing against the possible consequences.  That can only be done with the help of a competent attorney.  If you need help finding an attorney in your area, the American Immigration Lawyers Association has a referral service. 

I will post more as we digest the information has been released and as new material arrives.

New Deferred Action Information

On August 3, 2012, USCIS issued revised FAQs on deferred action.  USCIS will release full details on the application procedure, including a deferred action form, on August 15, 2012. According to the new FAQs, an individual who meets the following criteria may apply for deferred action:

• Was under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching his/her 16th birthday;
• Has continuously resided in the U.S. since June 15, 2007, up to the present time;
• Was physically present in the U.S. on June 15, 2012, and at the time of application to USCIS;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
• Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety.  

 Stay tuned.  We will have more information next week.

Still Waiting for Deffered Action Instructions for "DREAM Deferral"

DHS has not yet released instructions or forms for the proposed deferred action for individuals who came to the U.S. before they were 16, attended school here and were 30 or under on June 15, 2012 (along with other proposed requirements).  We are expecting instructions in mid-August.  If you are a potential candidate for "DREAM Deferral,"  I would advise the following:  do not go to a notario or a private "multi-service center" for assistance.   I believe that local non-profit organizations will organize clinics to help potential candidates with their applications or will help them find attorneys.  If you decide to speak with an attorney, which is highly advisable, you should look for a lawyer who is a member of AILA (American Immigration Lawyers Association).  I would advise against hiring an attorney who simply wishes to take your money to file your application without having a conversation with you about whether or not deferred action will actually be helpful to you.  Everyone's case is different and should be evaluated on an individual basis.  Good luck.

Dream Deferral: Not Yet Here But Coming Soon

The DHS deferral program for individuals who would have qualified for the Dream Act (had it ever passed) has not yet begun.  DHS announced today that they will begin accepting applications within 60 days of June 15, 2012, the day they announced the program.  The basic criteria will be:

• That the applicant came to the United States while under the age of sixteen;
• Has continuously resided in the United States for at least five years preceding June 15, 2012 and have been physically present in the United States on June 15, 2012;
• Is currently be in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; 
• Is not above the age of thirty.

Potential applicants:  do not pay anyone any money to file an application for you yet:  DHS has not issued instructions and is not yet accepting applications

Bill Graves and John Gallini to co-chair the Immigration Section of the Boaton Bar Association

I have been co-chair of the Immigration Section of the Boston Bar Association for the past year, along with Anita Sharma of the PAIR Project.  Anita is stepping down as co-chair and will be joining the steering committee, and John Gallini of Morse, Brown-Barnes Pendleton will be the new co-chair.  I will miss Anita, but I have known John for many years and look forward to working with him.  We are planning on a great year filled with interesting programs. 

New Supreme Court Case - good news - Vartelas v Holder

In Vartelas v. Holder, 3/28/12, the U.S. Supreme Court held that an LPR with a pre-IIRIRA convictions not subject to the applicant for admission provisions of INA § 101(a)(13)(A).  The Court that that section does not have retroactive effect.  This effectively resurrects Fleuti v Rosenberg for some LPRs.  In other words, an LPR with a pre-IIRIRA conviction will not be considered to be an applicant for admission after a trip abroad.

New First Circuit case on REAL ID

In Guta-Tolossa v Holder, No. 10-2132P (1st Cir. March 16, 2012), The First Circuit addressed the credibility provisions of the REAL ID Act of 2005.  REAL ID has made it more difficult for applicants, particularly asylum seekers, to present their claims, especially if no corroborating evidence is available.  The First Circuit leaves open (for the Board to decide) whether an applicant should be given notice and an opportunity to produce additional evidence if deemed to be otherwise credible.  

This seems only fair:  asylum seekers are often in the worst position to obtain corroborating evidence.  They have fled their countries of origin and may place friends or family members in danger if they try to communicate with them.  If their testimony is credible, that should be enough.  If their testimony is otherwise credible and the Judge determines that it is reasonable to obtain corroborating evidence, the applicant should be allowed to do so.

Reminder: Re- Registration for Salvadoran TPS expires on March 12, 2012

On January 10, 2012, the Department of Homeland Security extended Temporary Protected Status (TPS) for 18 months for eligible nationals of El Salvador.  The 60 day re-registration period ends on Monday, March 12, 2012.  More information can be found at the following links to the USCIS website:  USCIS - TPS and USCIS - TPS-El Salvador

Supreme Court finds tax evasion is an aggravated felony

Justice Thomas wrote the majority opinion in a 6-3 decision finding that tax evasion inherently contains fraud or deceit and is an aggravated felony where the loss to the Government exceeds $10,000.

"This case concerns whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony. We hold that violations of 26 U. S. C. §§7206(1) and (2) are crimes “involv[ing] fraud or deceit” under 8 U. S. C. §1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., when the loss to the Government exceeds $10,000." - Kawashima v. Holder, Feb. 21, 2012. 

The primaries and immigration

The ramped-up anti immigration rhetoric from the South Carolina primary has quieted a bit as the Republicans have moved into Florida where the topic is, shall we say, more sensitive.  What is disappointing is the lack of understanding and nuance in the candidates positions.  Mitt Romney's use of the term "self-deportation" brought chuckles from some  commentators, but the American Immigration Council points out that the term has a specific meaning.  It is deportation by attrition through enforcement, particularly following the enactment of state laws which make life for non-citizens unbearable.  The link to the AIC article is here.

Of course the point that the candidates overlook is the extensive family ties here that many noncitizens have, and the devastating effect of the 3 and 10 year bars incorporated into IIRIRA which has only served to drive individuals underground who would otherwise have been able to legally immigrate.

Article on South Carolinia Business and Immigration Forum

There was a fascinating article on an immigration and business forum in South Carolina.  The speaker noted that no one has a problem with professional sports relying on foreign-born players (80% in the NHL), and that business should be encouraging immigration reform and fighting against restrictive state laws.  The comments following the article show the gap in how people view immigration -- both legal and illegal.    link

USCIS announces new policy on stateside adjudications of I-601s for unlawful presence

In welcome news USCIS has outlined a process that would allow certain individuals who are seeking permanent residence and are immediate relatives of U.S. citizens to apply for and be granted provisional waivers of inadmissibility before leaving the U.S. for consular processing of their immigrant visa applications. This would apply to individuals whose only ground of inadmissibility is unlawful presence.

This is great news for families who must face the difficult dilemma of facing long delays abroad when they decide to consular process.

Disturbing story on USC deported to Colombia

An African-American teenager was deported to Colombia in 2010 and was recently located by her grandmother.  http://www.wfaa.com/news/texas-news/Dallas-Teen-Is--Mistakenly-Deported--136626533.html