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Deferred Action for Childhood Arrivals

Deferred Action for Childhood Arrivals

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Deferred Action for Childhood Arrivals

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  1. Deferred Action for Childhood Arrivals

    Barbara Hines University of Texas School of Law Immigration Clinic With thanks to Amelia Ruiz Fischer, Texas Civil Rights Project, for improved graphics and text
  2. Context of DACA Failure of Dream Act Effect of Secure Communities and increased deportations Efforts by Dreamers and advocacy community for executive fix
  3. Context of DACA Failure of Dream Act Effect of Secure Communities and increased deportations Efforts by Dreamers and advocacy community for executive fix
  4. Purpose of Law School Clinics Provide basic legal advice regarding DACA Screen for ineligibility and complicated cases to refer to other agencies and lawyers Assist qualified applicants to file DACA applications Review and advise regarding documents and filing process Fill out applications
  5. Relevant Agencies Department of Homeland Security U.S. Citizenship and Immigration Services Benefit branch of DHS Will adjudicate DACA applications Immigration Customs and Enforcement (ICE) Enforcement branch of DHS Initiates deportation (removal) proceedings and deports non-citizens
  6. What is DACA? DHS’ (ICE and USCIS) prosecutorial authority to: Decline to initiate proceedings or deport certain non-citizens and terminate on-going cases. 2012 ICE memo outlining enforcement priorities: Setting out low priority cases Resistance from ICE agents Disparate application of memo
  7. Deferred Action: “You may say I’m a DREAMer …” Administrative discretionary authority to “defer” deportation Not a new mechanism John Lennon VAWA Self-Petitioners Systematic use of prosecutorial discretion, which is usually exercised on ad hoc basis Allows immigrant to remain in U.S. for a period of time authorized by DHS. Eligible to apply for work authorization Social security number Driver’s license State by state basis
  8. DACA Announcement- June 15, 2012 "Many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.” Janet Napolitano, DHS Secretary, on DACA Policy decision, not executive order
  9. DACA Benefits Two years deferred action Employment Authorization Valid Social Security Number Texas Driver’s License Travel outside U.S. for humanitarian, education or employment reasons with USCIS approval
  10. What DACA is not: Permanent or Temporary residence A path to permanent residence or citizenship No eligibility for federal loans, grants, medical programs
  11. Who benefits? Potentially 1.7 million youth January 2013 statistics 407,899 applications received 154,404 approved 290,019 from Mexico Highest states : 1) California 2) Texas
  12. DACA Requirements Overview Age Residence Education Disqualifications for certain criminal convictions and national security No time limitation on filing application
  13. Age and Residency Requirements Came to the U.S. before reaching 16th birthday Continuously resided in the U.S. since June 15, 2007 and up to present time At least 15 years of age at the time of filing except for individuals in removal proceedings or whose case was terminated who may file before age 15 Under the age of 31 as of June 15, 2012 Entered without inspection or without proper documents before June 15, 2012, or lawful immigration status expired as of June 15, 2012 Present in the U.S on June 15, 2012, and at the time of making request for deferred action
  14. Educational Requirement Currently in high school or college Graduated or obtained certificate of completion from high school Obtained GED certification Graduated from college Currently enrolled in certain job training or educational programs Designed to lead to postsecondary education or job placement Federally funded, state funded, or administered by providers of demonstrated effectiveness Honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.
  15. Criminal Disqualifications Felony conviction Defined under federal, not Texas law Crime for which a sentence of more than a year can be imposed One felony conviction is a disqualification Misdemeanors Defined by USCIS, not Texas law Offense for which minimum sentence is more than 5 days up and up to one year. Expungements Unlike other immigration contexts, an expunged conviction is not a bar to DACA
  16. Criminal Disqualifications (2) Significant Misdemeanor Domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence, regardless of length of sentence, regardless of sentence Any offense for which applicant actually served 90 days in jail Does not include a suspended sentence
  17. Criminal Disqualifications (3) Three misdemeanors of any type Does not include most traffic violations or driving without a license, except for offenses involving drugs and alcohol. Juvenile adjudications are not a bar, but will be reviewed on case by case basis REFER ALL CASES WITH CRIMINAL HISTORY TO DACA CLINIC ATTORNEYS Applicants must obtain their criminal records Depending on record, may need additional discretionary evidence of good character
  18. Other Disqualifications National security threat Public safety threat Gang membership
  19. Departures since June 15, 2007 Brief departures for legitimate reasons will not affect DACA eligibility Reasonably calculated to accomplish purpose of trip. Not because of removal order or voluntary departure. Guidelines do not set out a maximum amount of time for trip In other immigration contexts, 90 day maximum I-821D elicits information about departures from the U.S.
  20. Departures (2) Manner of re-entry irrelevant for DACA But problematic for future benefits Visa fraud for misrepresenting the purpose of entry back into U.S. Example: a DACA applicant with a valid visa tells the DHS official at the border, he is going to San Antonio on a shopping trip, when he has been living here and going to school.
  21. Departures (3) Bar for ten years for other immigration benefits for: A person who has been in the U.S. for more than one year without lawful status, who Travels outside the U.S. and Reenters or tries to reenter illegally INA Sec. 212(a)(9)(C) REFER ALL CASES WITH DEPARTURES TO DACA CLINIC ATTORNEYS
  22. Evidence of Nature and Length of Trip USCIS suggests submitting evidence of: Length of trip Bus/plane tickets Mexican documents (if trip to Mexico) Passport stamp Affidavits Purpose of trip Wedding or death announcement Family emergencies Medical records Birthdays Family photos
  23. Residence before age 16 and Reentry after age 16 Justin lived in the U.S. from age 10 until age 15. Justin and his parents returned to Mexico at that time. He reentered the U.S. at age 17 in 2006 and has resided here since then. Under USCIS recent FAQ, if applicant can establish “multiple years of residence” before age 16 and continuous residence since June 15, 2007, he qualifies. Refer such cases to DACA clinic attorneys
  24. Travel Applicants may not travel outside the U.S. before DACA is approved After approval, must obtain “advanced parole” Permission from USCIS for humanitarian, educational or employment purposes
  25. Documentary Evidence What kind? How much?
  26. Proof of Identity Passport Birth Certificate with photo identification Any U.S. government immigration or other document bearing name and photo Mexican Cedula
  27. Documentary Evidence for Entry and Residency Requirements Must submit documents to establish: Entry before 16th birthday Continuous residency since June 15, 2007 Presence in U.S. on June 15, 2012 Evidence to meet these three requirements overlaps Document with name, date, address in U.S.
  28. Presence on June 15, 2012 Phone records from the month Bank ATM transaction Facebook posts with name and place If no documents from June 15, documents for month of June and July. If no summer documents, May, 2012 and Sept 2012 (e.g, school records) For persons who entered with a visa, must show that visa expired as of June 15, 2012 Form I-94/I-95/I-94W with authorized stay expiration date Stamp in passport with expiration date Final order of exclusion, deportation, or removal before June 15, 2012 Notice to Appear to being removal proceedings
  29. Presence of June 15, 2012(2) For persons who entered with a visa, must show that visa expired as of June 15, 2012 Form I-94/I-95/I-94W with authorized stay expiration date Stamp in passport with expiration date Final order of exclusion, deportation, or removal before June 15, 2012 Notice to Appear to being removal proceedings
  30. Proof of Educational Requirement School records (transcripts, report card, etc) from the school currently attending U.S. high school diploma or certificate of completion U.S. GED certificate College transcripts or college diploma Proof of enrollment in a vocational/employment training program, other educational program or GED program REFER ALL CASES OF STUDENTS IN VOCATIONAL, ESL, JOB TRAINING, GED OR ALTERNATIVE PROGRAMS TO DACA CLINIC ATTORNEYS
  31. Proof of Military Service Honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Guard Form DD-214, Certificate of Release or Discharge from Active Duty NGB Form 22, National Guard Report of Separation and Record of Service Military personnel records Military health records
  32. How much evidence? Document to cover each quarter of last five years is preferable DHS has recognized that students may not have documents from summer months Many documents will cover a large period of time School transcripts and records- best evidence Rent receipts Telephone bills Medical records Vaccination records Dated bank transactions
  33. Other Examples of Evidence Passport entry for those who entered the U.S. legally I-94 card for those who entered legally Birth certificates of children born in the U.S. Automobile license receipts or registration Deeds, mortgages, rental agreement contracts Tax receipts, insurance policies Correspondence with date, name and address Affidavits Not favored by USCIS Can only be used for gaps in documentation or to show purpose/length of a departure Must have two affidavits (from individuals other than the applicant)
  34. Application Process Form I-821D- DACA application Form I-765- Employment authorization application Form I-765WS- proof of economic need G-1145 if applicant wants email notifications Filing fee of $465.00- money order or cashier’s check Two passport photos Supporting documentation to meet DACA requirements
  35. How to Show Economic Need for I-765 Expenses must be greater than income Resource table materials: list of possible expenses Include a short sentence about need to work: “I need to work to save money for college” or “Even though I live with my parents, they don’t make enough money to support me.” Do not include parents’ income. If applicant doesn’t work, income is “0”. Add, e.g., “my parents support me, but I need additional money to save for college.” or “my parents’ income is not enough for our family’s total expenses. ”
  36. Fee Exemption of $465 filing fee Under 18 years of age, homeless, in foster care or lacking any parental or other familial support, and below 150% of the poverty level. Suffer from a serious, chronic disability, income is less than 150% of the poverty level. $25,000 or more in unreimbursed medical debt in the past 12 months for yourself or an immediate family member, incomes less than 150% of poverty level.
  37. Procedure after Filing Receipt notice from USCIS If selected on I-821D, will receive email notifications about case Notification of biometrics appointment Important to advise applicants of need to attend appointment Advise USCIS of any change of address AR-11 at When approved, will receive approval notice and employment authorization document With these documents can obtain valid social security number and driver’s license
  38. Practice Tips All documents in Spanish must be translated with a translation certification They do not need to be notarized Copies of documents, not originals, should be filed. Affidavits, although not the preferable proof, do not need be notarized, although they can be. They may be signed under “pains and penalty of perjury.” Samples at resource table A passport is not required if the applicant has another official document/documents with a photo, for example, a birth certificate and a school I.D.
  39. Practice Tips- Forms If applicant doesn’t know exact day and month of all addresses, leave day blank, enter month and year and include “approximate dates” If a question does not apply, leave blank Compare addresses on applicant’s documents with the addresses she has provided If document appears suspect, flag it for DACA clinic attorneys
  40. Manner of Entry into U.S.- I-765, Question 15 Visa: e.g., visitor or student; border crossing card EWI – (entry without inspection) – crossed river or desert Wave-through – No questions were asked of ANYONE in the vehicle at international bridge regarding legal status, citizenship or visa and everyone in vehicle was waved through by border official. Very small minority of the cases. Consult DACA clinic attorney No lawful status – All other entries at the international bridge including presenting a false birth certificate or claiming to be a U.S. citizen, having someone else present false documents on applicant’s behalf or not knowing what occurred at the bridge. Unknown–Applicant does not know the manner of entry and can’t reasonably ascertain this information, for example, by asking a parent.
  41. Current status in U.S., Question 15, I-821D Answer “DACA applicant”
  42. Prior Contact with Immigration We will try to prescreen but, Refer to DACA clinic attorneys any applicant who has been in deportation/removal proceedings before.
  43. Use of false social security numbers DHS has clarified that only valid social security numbers must be reported on the application forms. Do not list any other social security numbers Avoid, if possible, submission of documents with false social security numbers
  44. Common Questions What will happen at the end of two years? We do not know. DACA is not a guarantee of status. Hopefully, we will have immigration reform
  45. Common Questions What is the risk of filing? If you have a criminal record, gang issues or have committed fraud, you should speak to a lawyer before you file You should not file false documents as you could be placed in deportation We cannot guarantee what will happen at end of two years. Examples of other programs that began temporarily and turned into permanent residence programs
  46. Common Questions Will my undocumented parents be at risk if I file? No, USCIS will only provide information to ICE in the case of fraud or because your application fits one of its enforcements priorities (crimes, gangs, national security, etc.) I have a pending application already filed, for example, based on my mother’s citizenship. Does that matter? DACA will not affect the application but it will not accelerate the process. You can filed for DACA and continue with any other application
  47. Common Questions If I don’t have documents in my name to show I came to the U.S. before age 16, can I use documents with my parents’ names? School records and other documents in your name with a date and address in the U.S. are the best proof. However, if your birth certificate shows your parents’ names, you can use documents in your parents’ nameswith affidavit from parent See resource table materials at clinic.
  48. Common Questions Do I have to submit documents for the summer months when school was out? If you have continuous school records, we do not believe that USCIS will ask for proof that you were here during the summer. However, if you have documents from the summer months, you should include them. The name on my birth certificate is Daniel Garcia- Gonzalez. My school records are listed under Daniel Gonzalez. Will this be a problem? No. USCIS is accustomed to the use of two surnames in Latin America
  49. Confidentiality All information lawyers, law students, community volunteers and translators learn about applicants is confidential.
  50. Thanks so much for coming and volunteering for this important project!