Archive | July, 2012

Deferred Action Application Fees At Least $465

24 Jul

The AP has published an article stating that deferred action application fees will be $465 — which makes sense, considering that an application for work authorization costs $380 and biometrics cost $85, totaling $465. If this is true, that means there will be no additional fee for the deferred action application.

There were internal discussions within USCIS to charge an additional fee for the application, but as of now, either there is no additional fee or the number has not been determined. We will know more on August 1 when new guidelines are released.

Please visit our Dream Act Deferred Action site to find answers to your questions regarding the process.

Sen. Richard Durbin Discusses the DREAM Act, DHS’s “Deferred Action” Policy, and the Road Forward for DREAM Youth

24 Jul

More than a month ago, President Obama announced a major program offering undocumented immigrant youth who would qualify for relief under the DREAM Act the chance to apply for “deferred action,” protecting them against deportation. Sen. Richard Durbin (D-IL) is an original sponsor and has been the foremost champion of the DREAM Act for the 11 years that the legislation has been pending.

Today, Senator Durbin held a conference with Dreamers from around the country regarding the DREAM Act. He also received a huge thank you from several Dreamers for his hard work in pushing for the passage of the legislation.  If passed into law, the DREAM Act would provide a pathway to citizenship for anyone who was brought here before the age of 16, lived here continuously for 5 years, graduated from high school/obtained a GED, went on to college or joined the military, and is currently under the age of 31.

“The DREAM Act would give the Dreamers here today—and thousands others like them—the opportunity to become our future doctors, teachers and soldiers,” Senator Durbin stated at his press conference.

In recent years, Senator Durbin has profiled dozens of these youths, who call themselves DREAMers, on the Senate floor, bringing to life the stories and struggles of young immigrants who are American in all ways but a piece of paper. Sen. Durbin’s floor speech this week will mark the 50th DREAMer he has featured on the Senate floor. Learn more about their inspiring stories here: durbin.senate.gov/dreamers

“Someday the DREAM Act will be the law of the land and on that day America will be a better nation.”

Please visit our Dream Act Deferred Action site to find answers to your questions regarding the deferred action program.

Ten Things You May Not Know About Deferred Action

23 Jul

Click here to download PDF file: Ten Things You May Not Know About Deferred Action

1. John Lennon – This great music icon has contributed more than just the song “Imagine” to Dreamers. We have John Lennon to thank for deferred action. Deferred action existed as “non-priority program” under legacy Immigration and Naturalization Services but it was not known about till the U.S. tried to deport John Lennon and he challenged his order of removal. Lennon’s attorney did a FOIA request and found an unpublished INS Operations Instructions, describing non-priority as, “an act of administrative choice to give some cases lower priority.” Non-priority was renamed “deferred action” in 1975 under new and publicly released Operations Instructions, which stated, “in every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category.” The INS Operating Instructions said that consideration should be given to advanced or tender age, lengthy presence in the United States, physical or mental conditions requiring care or treatment in the United States, and the effect of deportation on the family members in the United States. On the other hand, those INS Operating Instructions made clear that criminal, immoral or subversive conduct or affiliations should also be weighed in denying deferred action.

2. Deferred action does not create any affirmative right. Deferred action status amounts to a temporary reprieve from deportation, which is highly discretionary and granted on a case-by-case basis. Federal appeals courts have long held that a grant of deferred action does not have the force and effect of substantive law, which means that a non-citizen cannot sue for denial of deferred action since it creates not property or liberty interest. Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985); Pasquini v. Morris, 700 F. 2d 658, 659 (11th Cir. 1983); Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981); Lennon v. INS, 527 F.2d 187 (2d Cir. 1975). Today within the Department of Homeland Security (DHS), all three of the immigration-related agencies—ICE, U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP)—possess the authority to grant deferred action at their discretion. This discretion is not appealable to any court, which means that people who are denied deferred action do not have a legally cognizable claim to sue for denial of an affirmative benefit.

3. Deferred action is premised on many internal guidance and policy memoranda. Deferred action is a form of prosecutorial discretion that an agency can exercise on an individual case-by-case basis. Under 8 C.F.R. § 241.6, DHS can grant a stay of removal to a non-citizen who has been ordered deported or removed from the United States. The authority to issue deferred action is well-documented in agency manuals and internal memoranda such as:

4. Legacy INS and DHS has a long history of using prosecutorial discretion in the cases of individuals in a wide range of circumstances. The Executive branch has provided blanket deferrals of deportation numerous times over the years. Starting in 1976, Legacy INS issued extended voluntary departure (EVD) to Lebanese nationals who were otherwise deportable from the United States on a case-by-case basis. The same benefit was granted to Ethiopians in 1977, Ugandans in 1978, Nicaraguans and Iranian nationals in 1979, Afghans in 1980, Polish nationals in 1984, Salvadorans in 1992, Haitians in 1997 and so on. Prior to the repeal of the widow penalty, DHS granted deferred action to U.S. citizen widows and widowers and their children under 18 years of age in the United States, who were facing deportation because they had been married to their deceased U.S. citizen spouses for less than two years. International students who had been affected by Hurricane Katrina were also granted deferred action. On some occasions, DHS has agreed to not deport individuals with criminal records, mentally deficient or physically impaired people, notorious drug traffickers, and other aggravated felons using prosecutorial discretion.

5. The origins of DREAM Act deferred action – The first known case of deferred action for a DREAM Act-eligible youth is Walter Lara, who was brought here from Argentina when he was merely three years old. Lara, a graduate of Miami Central Senior High and Miami Dade Honors College, was detained by ICE in February 2009. He agreed to voluntary departure in March 2009 and he was ordered to leave the country by July 4, 2009. Andres Benach and his team took the case pro-bono and with the help of organizers, got this young, brilliant man deferred action on the premise that he was a DREAM Act-eligible student with long-term residency in the country and no criminal record. The rest is history, as immigration advocates have filed for deferred action successfully in more than a thousand cases to stop the removal of young immigrants from the United States. Led by undocumented youth, these campaigns have been branded as “Education Not Deportation,” which paved the way for the June 15 announcement by President Obama.

6. What benefits do I get with deferred action? Deferred Action allows an individual to apply for an “Employment Authorization Document” (EAD) to work in the United States under Sec. 274a.12(c)(14), if they can prove “economic necessity.” Immigration officials have interpreted this broadly to grant work authorization provided the regulatory criteria is met. The Social Security Administration issues Social Security Numbers to people with an EAD, which reads “Authorized to Work with DHS Approval.” In many states, these two documents—an SSN card and an EAD—are enough for the issuance of driver’s licenses and state identification cards. Any other benefit such as instate-tuition, Medicare and other public assistance program is up to the discretion of the individual state. The grant of deferred action does not provide the individual with a pathway to permanent residence or U.S. citizenship and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”

7. Individuals who get deferred action are considered lawfully present for very narrow purposes. Any individual granted deferred action does not accrue unlawful presence in the United States. Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom’s Officer at the time of entry. Non-citizens who accrue more than 180 days but less than 1 year of unlawful presence are barred from re-entry to the U.S. for three years. Similarly, non-citizens who have been in the U.S. for one year or more beyond the period of authorized stay are barred from re-entering the U.S. for ten years. A minor child, under the age of 18, does not accrue unlawful presence for purposes of the three and ten year bars until the day after his or her 18th birthday. As such, Dreamers who are granted deferred action while they are under the age of 18 can go on to obtain non-immigrant visas such as a H-1B, since technically, they would not have any unlawful presence. Do note that although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence.

8. How do I get work authorization with deferred action? Currently, you must submit an I-765 Form to USCIS, which is an application for work authorization and pay the appropriate fees. On the I-765, you will cite 8 CFR 274a.12(c)(14), the regulation for deferred action, for question 17.158. On average, a decision is made in three months.

9. Individuals with final orders of deportation are eligible for deferred action if they have not yet left the country. Yes, deferred action has primarily been used in cases where individuals were granted final orders of removal. This includes a final order of removal order inabsentia, a voluntary departure grant that turned into a final order of removal, and even a final order of removal issued by an Immigration Judge after substantial adjudication. However, in order to qualify for deferred action, an applicant must have remained in the country after their final order of removal and not left only to re-enter without authorization. Individuals who have departed the country after final orders of removal and re-entered without inspection will not qualify for deferred action and should not apply since they may be subject to imprisonment under 8 U.S.C. § 1326.

10.  Deferred action is encouraging people to go back to school and obtain their GEDs. Based on early conversations with USCIS, officers were not going to grant Deferred Action to people who enroll in GED classes or obtain their GED after June 15, 2012. We have thoroughly opposed to this and as of now, we are hearing that as long as people are enrolled in a GED program, they should be able to qualify for deferred action. Individuals who have not yet obtained their GED or high school diploma are highly encouraged to go back and enroll in GED classes.

For more information on DREAM Act Deferred Action, please visit our website, http://dreamactdeferredaction.com

Napolitano: Deferred Action Applications Will Be Available on August 15

19 Jul

Today, 104 Democratic Members of Congress released a letter to President Barack Obama thanking him for his decision to instruct the Department of Homeland Security to offer “Deferred Action” deportation relief to young immigrants raised in the U.S. who would qualify for the DREAM Act.

The Members of Congress wrote:

We recognize that there are those who will want to take the power of discretion away from you and the Executive branch. Like you, we agree that you are on solid moral, legal, and political ground and we will do everything within our power to defend your actions and the authority that you, like past Presidents, can exercise to set enforcement priorities and better protect our neighborhoods and our nation.

The letter was largely to show support for the new policy ahead of DHS Secretary Janet Napolitano’s testimony in front of a largely hostile House Homeland Security Oversight Committee.

Republicans on the House Homeland Security Committee continue to believe that the President usurped Congressional authority with his announcement to not deport Dreamers and threatened to take DHS Sec. Napolitano to court over her June 15 memo.

Rep. Steve King was especially hostile:

Napolitano countered criticism regarding the deferred action program by noting that this was an evolution of a process that began in 2010 and reiterated that the announcement comes on the heels of various memos: the Meissner memo from Legacy INS, Julie Myers Memo, and the Morton Memo.

“I will not rescind it. It is right within the law.”

With regards to deferred action, Napolitano said that applications will be available on August 15 and added in her testimony that:

Individuals must also complete a biographic and biometric background check and not currently in removal proceedings or subject to a final order, must be 15 years or older to be considered for deferred action. Only those individuals who can prove through verifiable documentation that they meet these criteria will be considered for deferred action under this initiative. Individuals will not be eligible if they are not currently in the United States or cannot prove that they have continuously resided within the United States for at least five years.

Napolitano reiterated that the program will not cost American taxpayers because there will be a fee for the process (in addition to the $380 for work authorization and $80 for biometrics). It is important to note that DHS has not yet decided the cost of the application.

When Rep. Quayle (R-Arizona) pressed her on the issue, Sec. Napolitano stated there may be a hardship fee-waiver process in some cases. However, she did clarify that there will not be a broad fee waiver process but that people may be granted waivers in exceptional circumstances.

The Congressional Research Service also released an analysis of the June 15 memo, which is available here. Among other important things, the CRS notes that Dreamers who are granted deferred action may be able to work but are not entitled to federally-funded public assistance, such as “retirement, welfare, health,disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual,household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.”

The DHS will put out additional guidelines on August 1.

For more on deferred action, please see our Dream Act Deferred Action website.

Five Things I Have Learned by Consulting with DREAMers

15 Jul

Over the last three weeks, I have met with dozens of young people about their eligibility for Dream Act deferred action.  I advise them that there is no process yet to apply for deferred action as outlined in the June 15, 2012 memo and that if the President loses the election, the program is likely to be cancelled and, finally, that there is a risk that the information provided by applicants in seeking deferred action may be used by Immigration & Customs Enforcement (ICE) to initiate removal proceedings.  I advise them that they appear to qualify for deferred action as laid out in the memo or explain why it appears that they do not.  I take their names and their carefully organized documents and let them know that we will reach out to them when we know more.  In dozens of conversations, I have learned the following things about an immigrant community that for an immigration attorney like me has laregly sat on the sideline as the law provided me with no means to assist them:

  1. The family is alive and well.  DREAM Act deferred action consults come in with parents and, usually, two parents.  The parents accompany their children to a lawyers’ office and observe and ask questions.  Amazingly, some of these parents traveled to the US years before their children and paid smugglers to bring their children to the U.S.  Yet, despite the risks that they once took, they are still there to watch over their children.  The children translate for their parents and, as I ask the DREAMers about their plans, their parents beam with pride as their kids recount their hopes of becoming veterinarians, law enforcement (!), writers, and doctors.  For all we hear about the breakdown of the family, I can report that in the immigrant community in the greater DC area, the family is often alive and well.  This is a surprise to me, actually.  Until the deferred action program was initiated, all I saw were abused and abandoned kids, as they had options under our immigration system.  Through the June 15, 2012 memo, I was reminded of the vast majority of immigrant families where children are loved and cared for and the family is united in a common struggle to improve their lot in life.  That, my friends, is America.
  2. But, immigration status can’t fix everything.  I met with a mother who was beside herself with grief over her 23 year old daughter.  She and her husband and their younger children had gotten residence, but the oldest daughter aged-out.  As the family applied for and received their residence, the daughter sunk into a deep depression.  She quit school and has been housebound for several years.  Although she has been prescribed medicine, she has recently stopped taking it.  She has lost all hope.  As I discussed the situation with the mother, I thought that the advice that the daughter could not adjust was wrong and that she ought to apply for adjustment.  However, there was a big risk in that as a denial could subject her to removal and her eligibility was not clear.  She could also file for deferred action, but she would need to get her GED first.  So, there was a decision to make- take a risky strategy to seek residence or take the necessary educational steps to seek deferred action.  The first would require little of the daughter, the second would require her to take control of her life and seek the GED.  While the immigration law may provide her with some options, some issues, such as depression, can not be cured by immigration alone.
  3. There are a lot of bad lawyers out there.  OK, I knew that one, but this process has driven it home.  I consulted with a family that appeared to me to be permanent residents.  They had thought so as well.  After all, the INS office in Los Angeles stamped their passports, four years ago.  The lawyer they hired “to get to the bottom of it” spent four years doing nothing and taking their money.  They had no copies of their documents as their lawyer never provided them with anything.  Once I tracked down their A numbers, I was able to confirm their residence in about two days.  They had been residents for over four years.  And, because they did not know their status, they were too afraid to leave the US when one of the couple’s parents was dying.
  4. You can’t predict the future.  Immigration lawyers sometimes joke that if you can not win, you should lose slowly.  Anti-immigrant wingnuts often similarly say, “it ain’t over until the immigrant wins.”  Either way you look at it, the future is a tricky thing to predict and one can never precisely tell just how things will shape up in the future.  I came across a couple of kids in proceedings.  A NGO filed a motion to reopen their removal proceedings with no clear idea of what they would do in reopened proceedings.  A judge granted the motion.  Now, the kids are eligible for DREAM Act deferred action, and will be able to do it without a removal order, which they would have if a couple of zealous advocates working on a shoestring for a non-profit hadn’t tried a hail mary to try to help a couple of kids.
  5. Don’t underestimate the power of hope.  I will admit it.  I was originally against the idea of blanket deferred action for DREAMers.  My feeling was that deferred action for DREAMers with removal orders was already de facto in place.  Making it an official policy would have trained the fire of every birther, wingnut, anti-Obama partisan onto undocumented youth.  Best that this be handled under the radar was my opinion.  But I was totally unprepared for the electric reaction that this has had in the immigrant community.  I have had the honor to meet high school students who now see the chance to go to college.  I met a high school valedictorian who got a business degree but was working at a McDonalds due to lack of status.  He can now put his education to use.  Watching a group of talented and energetic young people see opportunity open before them is an inspiring and humbling experience.  I have seen parents see a pay-off for the dangerous and uncertain road they took to the U.S. as their kids light up discussing their plans for the future. I have met people who have signed up for GED classes and have returned to school to seek this benefit.  Hope is an amazing and transformative thing.  While Dream Act deferred action is not perfect, it has already changed lives.

Ending years of bureaucratic limbo

5 Jul

Last week Benach Ragland brought two long-term cases to happy conclusions.  On Thursday, the Immigration Judge removed the conditional nature of our client’s residence.  Our client began the process of seeking the removal of conditions in 1996.  On Friday, another Immigration Judge terminated proceedings that the government commenced in 2005 when our client, a twenty year permanent resident returned home to the U.S. after a two week trip to Nigeria.  Both women spent the weekend relaxing knowing that their status as residents was secure.

Thursday was the final hearing for KMC.  KMC came to the U.S. in the late 1980s from Guinea in West Africa.  She was studying to be a nurse when she met MMC, to whom she had an instant attraction.  Although the couple met in a dance club, MMC’s mother always thought that they met at a business function because, as MMC put it, his mother was a “churchlady” who would not like a “”clubgirl.”  MMC knew right away that he wanted to marry KMC and made sure that she and his mother got off on the right foot.  After marriage,they lived together briefly until KMC elected to continue her studies in Maryland so she could become a registered nurse.  MMC petitioned for KMC’s residence, which was granted in 1994.  They traveled between New  York and Maryland to be together; however, when KMC finished her studies and went to work, MMC grew distant.  In 1996, it was time to remove the conditional nature of KMC’s residence.  The law provides that people who have been married for less than two years at the time residence is granted will be provided conditional residence.  Such conditional residence expires two years after residence is granted, at which time, the couple must file another petition to reaffirm the bona fides of the marriage.  If the couple has separated or divorced, they must show that the marriage was bona fide at the time of inception.  Although MMC and KMC had filed their petition to remove the conditions in 1996, they were not interviewed until 1999.  At that time, KMC and MMC had not seen each other for about two years and MMC gave confusing answers regarding their marriage.  Those answers sowed the seeds of doubt for the U.S. Citizenship & Immigration Service, which argued with KMC for the next 11 years about whether her marriage to MMC was bona fide.  In 2010, the CIS concluded that it was not and placed her into removal proceedings.  KMC finally had her hearing last week.  MMC flew from his new home in Seattle to attend the hearing.  When asked why he thought the marriage fell apart, MMC said that he could not handle that she made more than him and he felt as a failure as a man.  In our opinion, it takes a pretty big man tio state such a thing on the witness stand.  After hearing the testimony, the government’s attorney and the Judge agreed that it had been a bona fide marriage and the petition filed 16 years ago was granted.  Andres Benach represented KMC in court, but the case was won by the investigation and factual analysis performed by Dree Collopy.

The excitement continued on Friday in the case of MD.  MD came to the U.S. to go to school.  She went to undergraduate and attended law school in the U.S.  Fresh out of law school, MD got a job with an immigration lawyer.  Unfortunately, that lawyer was committing fraud and MD did what was asked for her and helped complete forms in support of such fraudulent applications.  MD was charged criminally and convicted of fraud.  She served two years in jail.  After she finished her sentence i n 1993, the then-INS told her that she was not deportable and returned her green card to her.  For the next 12 years, MD built her life back up, using her story as a cautionary tale and becoming a public speaker and prominent member of her community.  She remained with her husband and raised three children.  I have never seen more complete rehabilitation than I have with MD.  In 2005, as she returned to the U.S., MD was stopped and told that she was inadmissible gto the U.S. for conviction of a crime involving moral turpitude.  After 12 years in which she managed to put that shameful episode in her past, it came roaring back.  Under the law as it stood at that time, MD was not eligible for any relief from removal.  As she was in removal proceedings in Baltimore Maryland in the Fourth Circuit, she could not seek a waiver of inadmissibility under former 212(c) because she elected to go to trial.  Had she been in proceedings 50 fifty miles north in York, PA,  she could have sought 212(c) relief, which is not limited in the Third Circuit to those who pleaded guilty.  The Immigration Judge concluded that she was  not eligible for any relief and order her removed.  We took the appeal after Steny Hoyer’s office asked us to take the case.  Eventually, we were at the 4th circuit asking it to reverse itself on the question of pleading versus going to trial.  At that point, the government sought to send the case back to the Immigration Court.  We agreed and when the Supreme Court ruled in Vartelas v. Holder that permanent residents who were convicted of crimes prior to the 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) could not be charged with inadmissibility after a brief casual and innocent trip abroad, the case against MD was effectively over.    After seven years in which the case went from Immigration Court to the Board of Immigration Appeals to the U.S. Court of Appeals back down to the BIA and immigration court, the government came into court on Friday and moved to terminate the case, once again returning MD’s green card and passport.

MD’s case will always remind me of Michael Maggio.  When we sat in Michael’s office and met with MD for the first time, she broke down in tears describing what she had done.  In the way that only Michael could, Michael told her that he was Italian and that in his family going to jail is like going to college- a rite of passage expected of everyone.  MD formed a strong attachment to Michael and I remember having to call her when Michael died and listening to the wailing on the other end.  Now, four years plus after Michael died, MD got what she was looking for when she asked Michael Maggio for help.  And, as a proper tribute,  the Judge to grant the case was Judge Phil Williams, a great friend of Michael’s.

Frequently Asked Questions about DREAM Act Deferred Action

3 Jul

Why do you call it “DREAM Act Deferred Action?”

It is true that the new program is not the DREAM Act.  However, it does have its origin in the DREAM Act.  The DREAM Act is legislation in Congress that would, if passed, allow individuals who were brought to this country as children, have grown up in the U.S. and succeeded in school to obtain permanent resident status.  It has never been passed by both houses of Congress as necessary for Congress to pass a law.  It was last considered in 2010, when it passed the House of Representatives.  However, the Senate could not break a Republican-led filibuster and 55 votes in favor were not enough for passage.  President Obama had said that he would sign the DREAM Act if Congress passed it.  In light of the failure of the DREAM Act in Congress and in the face of unrelenting pressure from activist undocumented youth, the administration acted unilaterally to provide a measure of relief to the DREAMers.  Deferred action under this new program is meant to provide a benefit to the same group of people who would have benefited from the DREAM Act.  The DREAM Act remains before the Congress.

What is deferred action?

Deferred action is discretionary authority used by the Department of Homeland Security (DHS) to provide formal acknowledgement that the DHS does not consider their removal a priority.  It is an affirmative statement from DHS that it does not intend to remove a particular individual at this time and that such individual will be allowed to remain in the U.S. through the discretion of the government.  When the department decides to give an individual deferred action, that individual may also apply for employment authorization for the period of deferred action.

Where does the government get authority to grant deferred action?

Deferred action is a function of prosecutorial discretion.  Prosecutorial discretion is the concept that law enforcement officers and agencies cannot possibly punish or enforce all violations and that such agencies are forced to prioritize those violators that they will focus their attention upon.  With limited resources, agencies must pick and choose those that they will prosecute or, in the case of immigration, seek to remove.  Rather than conducting enforcement activities in a random and haphazard manner, DHS has provided a list of enforcement priorities, such as those who present a risk to the national security or public safety, convicted criminals, those who have a history of immigration fraud or egregious violations of immigration law, and recent entrants to the U.S.  At the same time, DHS has identified those who are a lower priority for removal.  Deferred action for certain undocumented youth is recognition that the DHS places a low priority on removal of DREAMers.

Can I get a green card through this program?

No.  This program does nothing to alter the requirements for permanent residence (green cards) in the U.S.  Only Congress can provide a means of obtaining residency and citizenship and this program does not provide any form of permanent status or promise of future status.

So if it is not residence, exactly what is it?

It is a determination from immigration that they do not intend to remove a particular individual and that such individual can obtain employment authorization while they are here in the U.S.  It is subject to revocation by this or any future administration.

Can I apply today?

No, the Citizenship & Immigration Service (CIS) has 60 days to come up with a procedure to accept applications and will not accept applications until such a procedure has been established.  Individuals currently in removal proceedings or with removal orders may apply at this time with ICE.

Is this amnesty?

No.  The word amnesty has been horribly abused by those who wish to restrict immigration, who call anything short of mass deportation “amnesty.”  In immigration, “amnesty” refers to the 1986 Immigration Reform and Control Act (“IRCA”) which gave residence to a large class of people who had entered the U.S. before 1982.  This legislation provided residence to many who entered the country illegally as adults and did not satisfy any education requirements.  The new program has stricter requirements and provides fewer benefits.  It is limited to those who came as children and requires that they have shown achievement in school.

What can I do if I am in removal proceedings but I qualify?

Individuals who are in removal proceedings and qualify for deferred action are eligible for deferred action immediately.  They need not wait for 60 days for CIS to provide procedures.  If you are currently in removal proceedings, you should seek a lawyer to obtain termination of removal proceedings and deferred action.  However, there may be circumstances where that is not the best counsel and you should discuss your options with your lawyer.

What if I have an old order of removal?

You still qualify and can apply to ICE for deferred action without waiting for 60 days for CIS to establish procedures.

How do I prove that I entered before the age of 16 and that I have been here for five years?

The easiest way is through an I-94 card showing admission through a port of entry after inspection by an immigration officer.  However, it is clear that many individuals who will qualify for DREAM Act deferred action will not be able to prove a lawful admission.  These individuals must produce documents that show that they were here before they turned 16.  These documents may include: school records, medical records, church records, immigration documents, bank statements, credit card bills, insurance records, dated receipts for purchases, utility bills, leases, tax returns, birth certificates of children born in U.S., marriage certificates in U.S., driving records,  letters from employers, ministers, or other organization  confirming your presence in the U.S., or dated photos.  This is list is not exclusive and other reliable evidence may be considered.

How do I prove that I was here on June 15, 2012?

It will not be necessary for an individual to show that she was here on that exact date.  Such presence may be inferred by evidence that an individual was in the U.S. prior to June 15 and remains in the U.S. at this time.  Applicants should gather documents as listed above that are dated as close to June 15, 2012 to satisfy this requirement.

What are the educational requirements?

To qualify, an individual must be currently in school or have graduated from high school or have obtained a GED, or are honorably discharged veterans of the Armed Forces or Coast Guard.

I am currently taking GED classes, does that count?

It may.  Early indications are that CIS will extend eligibility to those taking GED classes and registered to take the GED exam.  This is not certain yet and will be clarified in the coming weeks.  For now, it makes sense to register for the GED or GED classes.

What are the criminal exclusions to eligibility?

To be eligible, an applicant must have not been convicted of a felony, a significant misdemeanor offense, multiple misdemeanors, or otherwise present a threat to national security or public safety.

What is a felony?

Generally, a felony is any crime that can be punished by more than one year in prison.

What is a significant misdemeanor?

This is a new term introduced by the DHS announcement of deferred action and it has never been defined before in the law.  The DHS gave examples of offenses that it considers significant misdemeanors: offenses involving violence, threats or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny or fraud, driving under the influence of alcohol or drugs, obstruction of justice or bribery; unlawful flight from arrest, prosecution or the scene of an accident, unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.  This definition creates ineligibility for many minor offenses.  Many of these offenses would not render someone deportable or inadmissible.  The American Immigration Lawyers Association and other groups are lobbying DHS to take a more lenient approach to minor misdemeanors.  However, until that happens (if it does), the breadth of the offenses that can create ineligibility make it essential that anyone with a criminal record seek counsel before applying.

How many (nonsignificant) misdemeanors are too many?

According to the DHS, three misdemeanors that do not rise to the level of significant will render an individual ineligible for deferred action.

How can I find out if I have a criminal record?

An individuals’ arrest record or “rap sheet” may be obtained from the FBI.  You will be required to submit a form, a fingerprint sheet and $18 to the FBI.  Information can be found here: http://www.fbi.gov/about-us/cjis/background-checks/.

If I have arrests, what documents will I need?

You will need a “certified disposition.”  This document should be available from the courthouse where the criminal matter was resolved.  A disposition will indicate the result of the arrest whether that result is a dismissal, acquittal or conviction.

If I have no convictions, can I still be denied as a threat to public safety or national security?

Yes, as deferred action is entirely discretionary, certain individuals who have never been convicted of any offenses may find themselves ineligible.  Those with multiple arrests but no convictions could still be considered a threat to public safety.  Suspected gang members could be considered a danger.   Those suspected of relationships with terrorist organizations are also likely to be excluded.  Individuals with a very bad driving record can also be at risk.

If I have no convictions and am not a danger to national security of the public safety, can I still be denied?

Yes.  Again, since deferred action is discretionary, the DHS is allowed to take many factors into account.  These factors may include a history of immigration fraud, the use of false social security numbers, failure to support dependents or other negative factors present in any individual’s case.

What happens if I am approved?

Someone granted deferred action is eligible for employment authorization.  Employment authorization will also allow an individual to obtain a social security number and, usually, a driver’s license or state ID.  Deferred action will be granted in increments of two years and is renewable.

What happens if there is a change in Presidential administrations?

Since deferred action for DREAMers has been established and initiated by President Obama and Secretary of Homeland Security Janet Napolitano, a change in administration could mean a change in the policy.  Mitt Romney has not stated whether he would repeal the program.  He has stated that he is opposed to the DREAM Act and he supports laws like Arizona’s.  It seems to be a safe bet that a President Romney and his appointee would not support deferred actio0n for DREAMers.

If it is likely to be cancelled by a new administration, should I still apply?

That is up to you.  There is a risk in applying.  The information provided to the government in an application may be used by the government to commence removal proceedings.  By coming forward, DREAMers risk being able to remain in the U.S. without documentation.  For our opinion, please see https://liftedlamp.wordpress.com/2012/06/27/national-dream-act-graduation/.

What happens if I am denied?  Can I appeal?  Will I be placed into removal proceedings?

There is no appeal from a denial.  In addition, an individual may be placed into removal proceedings upon being denied.  People who are denied due to criminal issues, fraud or other significant negative factors should expect to be placed into removal proceedings.  While such individuals may qualify for relief from removal, the possibility of removal proceedings for these individuals must be taken seriously.  However, CIS has not yet stated what it intends to do with individuals who do not qualify (i.e. lack the five years) but do not present any significant negative factors.  Under current guidance, CIS does not place such individuals into removal proceedings.

What happens if I am stopped or arrested by immigration before I can apply?

Immigration & Customs Enforcement (ICE) has been instructed not to initiate removal proceedings against individuals who may qualify for DREAM Act deferred action.  If someone you know who seems to qualify for DREAM Act deferred action and is detained by ICE, you should immediately contact an attorney.