Deferred Action for Childhood Arrivals - Pro Bono Project

Report
Helen Parsonage, Partner, Elliott,
Pishko & Morgan, PA
Margaret Taylor, Wake Forest
University School of Law
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It’s a new program: it provides a limited form of
relief (“deferred action status”) to qualifying
individuals who were brought into the country as
children, and have no route to lawful status
(“DREAMers”)
It’s a large program: an estimated 1.7 million people
could qualify nationwide; over 50,000 in North
Carolina; 3,000 people eligible to apply now in our
local congressional districts (5th and 12th)
Potential applicants need assistance—and need to
be protected from unlicensed “notarios”
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Individual attorneys and nonprofits need help with pro
bono DACA events
They also need help with individual cases, which they have
taken on a pro bono or “low bono” basis
We are planning a Winston-Salem DACA pro bono event:
Saturday, November 10, 2012.
 Law student volunteers will play a critical role
interviewing applicants, reviewing documents and draft
applications, and flagging issues for the consulting
attorney
 If you are bilingual: PLEASE indicate this on the sign in
sheet for this training
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Failure of DREAM Act
Effect of Secured Communities and
increased deportations
Efforts by DREAMers and advocacy
community for executive fix, which led to…
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DACA is not a statute, regulation, or an Executive Order. You’ll find the
criteria and procedures…on the USCIS website:
www.uscis.gov/childhoodarrivals
Announced June 15, 2012; application procedures and forms posted
August 15, 2012.
Announcement by DHS Secretary Janet Napolitano, invoking
administrative discretion to “defer” deportation
 Not a new mechanism: John Lennon
 Allows recipient (who is not otherwise in lawful status) to remain
in U.S. for a period of time authorized by DHS
 Eligible to apply for work authorization
 May be eligible for driver’s license
Is an unreviewable discretionary determination: USCIS considers each
case on a “totality of circumstances” standard.
Deferred Action is a term that describes a long-standing policy of DHS. In deferred
action, the agency determines that an applicant’s deportation is not a priority
and therefore defers, or postpones, any action in the applicant’s case.
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Benefits
Temporary Relief from
Removal
Temporary Employment
Authorization; will be
able to receive a valid
SS#.
May be extended beyond
initial 2 years
Presence during term of
deferred action can help
prevent accrual of
unlawful presence
May travel with special
“Advanced Parole” from
USCIS
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6.
Drawbacks
Temporary Relief
Must be renewed every
two years
Does NOT confer
immigration status
No benefits for
immediate family
Does NOT cure prior
unlawful presence
Individual is now
“known” to DHS.
Law students cannot advise on whether the applicant qualifies or should
apply. Only the applicant can decide, after consultation with a licensed
attorney.
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Permanent or Temporary residence
A path to permanent residence or
citizenship
No eligibility for federal loans, grants,
medical programs
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Came to the U.S. before reaching 16th birthday
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Under the age of 31 as of June 15, 2012
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Continuously resided in the U.S. since June 15, 2007 and up to present
time
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Entered without inspection before June 15, 2012, or lawful
immigration status expired as of June 15, 2012
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At least 15 years of age at the time of filing
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except for individuals in removal proceedings or whose case was
terminated who may file before age 15
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Physically present in the U.S on June 15, 2012, and at the time of
making request for consideration of deferred action with USCIS
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“Currently in school”—elementary, middle,
high school.
Have graduated or obtained certificate of
completion from high school
Have obtained GED certification
Currently enrolled in certain job training or
educational programs
Honorably discharged veteran of the Coast
Guard or Armed Forces of the U.S.
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“Have not been convicted of a felony,
significant misdemeanor, three or more
other misdemeanors, and do not otherwise
pose a threat to national security is public
safety.”
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Felony conviction
Federal, state, or local criminal offense punishable by
imprisonment for a term exceeding one year.
 One felony conviction is a disqualification
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Significant Misdemeanor—a new term not defined elsewhere in
immigration law. The USCIS guidelines say:
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Must be a misdemeanor as defined by federal law (maximum term of
imprisonment is one year or less but greater than five days) that
meets one of the following criteria:
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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 sentence imposed
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Any offense for which applicant was sentenced to time in custody of more
than 90 days.
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Does not include a suspended sentence
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Three or more other misdemeanors
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Again must be a misdemeanor as defined in federal law: maximum term of
imprisonment is one year or less but greater than five days.
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This eliminates most traffic violations, driving without a license except for
drugs and alcohol
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Juvenile adjudications will be reviewed on case by case basis.
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BUT “your entire offense history can be considered along with other facts to determine
whether, under the totality of the circumstances, you warrant an exercise of
prosecutorial discretion.”
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ALL CASES WITH CRIMINAL HISTORY GO DIRECTLY TO LICENSED ATTORNEYS
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“If the background check or other information
uncovered during the review of your
request…indicates that your presence in the US
threatens public safety or national security, you
will not be able to receive
consideration…[unless DHS determines there
are exceptional circumstances]
“Indicators that you pose such a threat include,
but are not limited to, gang membership,
participation in criminal activities, or
participation in activities that threaten the
United States.”
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Brief, casual, innocent departures before August 15, 2012 will not affect DACA eligibility
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Not because of removal order or voluntary departure.
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Not to participate in any criminal activity
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Guidelines do not set out a maximum amount of time for trip
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In other immigration contexts, 90 day maximum
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I-821D elicits information about departures from the U.S.
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Travel outside the U.S. after August 15, 2012, whether before application was filed
or while under consideration, will disqualify an applicant.
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If application is approved, travel outside the U.S. only if DACA recipient applies
(and pays $360 fee) and receives a grant of advance parole.
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Application should include evidence of nature and
length of trip:
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Length of trip: Bus/plane tickets; Mexican documents (if trip to
Mexico); Passport stamp; Affidavits
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Purpose of trip: Wedding or death announcement, medical record;
family photos
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FLAG ALL DEPARTURE ISSUES FOR REVIEWING
ATTORNEY.
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Even if a departure does not render an applicant
ineligible for DACA, it could be problematic if, in
the future, they have a route to authorized status.
For an applicant for admission (not DACA),
accumulation of unauthorized presence plus
departure, or a misrepresentation made to secure
re-admission on a visa, could render the applicant
inadmissible.
That’s another reason to flag departures for a
reviewing attorney.
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Passport
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Birth Certificate with photo identification
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Any U.S. government immigration or other
document bearing name and photo
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Mexican Cedula
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With birth certificate
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School records (transcripts, report card, etc) from the school
currently attending
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U.S. high school diploma or certificate of completion
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U.S. GED certificate
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College transcripts or college diploma
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Proof of enrollment in a vocational/employment training
program, other educational program or GED program
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FLAG ALL CASES OF STUDENTS IN VOCATIONAL, ESL, JOB
TRAINING, GED OR ALTERNATIVE PROGRAMS FOR REVIEWING
ATTORNEY
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Honorably discharged veteran of the U.S. Armed Forces
or the U.S. Coast Guard
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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
Since individuals not in authorized immigration status
are not eligible to enlist, there are few people who will
qualify under this category.
FLAG ANY MILITARY SERVICE FOR REVIEWING
ATTORNEY.
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They may have better immigration options, including
naturalization.
Must submit documents to establish:
th
• Entry before 16 birthday
• Continuous residency since June 15, 2007
• Presence in U.S. on June 15, 2012
 Evidence to meet these three requirements
overlaps
Establishing
Documentation
Documentation
Documentation
Documentation
Documentation
Documentation
Came to U.S.
before 16th
Birthday
Passport +
Admission
Stamp
Form I-94/I95/I-94W
School
Records
INS doc. With
date of entry
Travel
Records
Hospital or
Medical
Records;
vaccinations
Proof of
Presence on
June 15, 2012
Rent receipts
or utility bills
Employment
records (W-2
etc)
School
Records
Military
Records
But needs
attorney
review
Official
Records from
Religious
Entity
Copies of
Money order
receipts; bank
statements,
ATM receipts
Resided
Continuously
since June 15,
2007
Passport
Entries
But be wary of
departures
Birth Cert. of
children born
in U.S.
Dated Bank
Records
Wire transfer
receipts
Rental
receipts
Auto license
receipt;
registration
Deeds,
mortgages, tax
receipts,
insurance
policies
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Document to cover each quarter of last five years is preferable
 DHS has recognized that student 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
Affidavits
 Not favored by USCIS
 Can only be used for gaps in documentation of five year continuous
residence requirement or to show purpose/length of a departure
 Must have two affidavits
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Any documentation with name and date
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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.
For persons who entered with a visa, must show
that visa expired before June 15, 2012
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Form I-94/I-95/I-94W with authorized stay expiration
date
Final order of exclusion, deportation, or removal before
June 15, 2012
Notice to Appear to being removal proceedings
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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
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Expenses must be greater than income
Include a short sentence about need to
work:
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“ 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.”
Not clear whether USCIS will require
supporting proof
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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.
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Applicant will receive a receipt notice from USCIS
If selected on I-821D, will receive email notifications about
case
Will be notified of biometrics appointment
 Important to advise applicants of need to attend
appointment
Advise USCIS of any change of address AR-11 at uscis.gov
No information at this time regarding how long process
will take
When approved, will receive approval notice and
employment authorization document
 With these documents can obtain valid social security
number and (probably) NC driver’s license
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All documents in Spanish must be translated
with a translation certification
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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. 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.
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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 address on applicant’s documents
with the addresses she has provided
If document appears suspect, flag it for
reviewing attorney
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DHS has clarified that only valid social
security numbers must be reported on the
application forms.
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Will my undocumented parents be at risk if I
file?
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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.)—although the guarantee of
confidentiality can be withdrawn at any time.
I have a pending application already filed, for
example, based on my mother’s citizenship.
Does that matter?
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DACA will not affect the application but it will not
accelerate the process. You can filed for DACA and
continue with any other application
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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?
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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 name, you can use documents in your
parents names. We suggest you include a statement
that you lived with your parents during the period
of time shown on the document.
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Do I have to submit documents for the summer
months when school was out?
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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 GarciaGonzalez. My school records are listed under Daniel
Gonzalez. Will this be a problem?
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No. USCIS is accustomed to the use of two surnames in
Latin America
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Make sure that you have signed in at the
training.
Ama Frimpong will send notify volunteers
when nonprofits identify the times when they
are doing DACA intake and processing, and
need law student help.
Others hosting DACA events have expressed
desire for law student volunteers.
2L and 3L students should email Professor
Taylor to volunteer to help individual
attorneys with their pro bono DACA caseload.
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Best source to stay up to date on DACA
developments (good to brush up before you
volunteer!):
http://www.immigrationpolicy.org/justfacts/deferred-action-childhood-arrivalsqa-guide-updated
It provides the link to the USCIS website,
and practice advisories on the topic, which
is very helpful to review
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It will vary according to your placement and the event.
A private attorney will need help with client follow up,
gathering additional documents, form completion, all
under attorney supervision.
At a DACA event:
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Intake: explain the limited representation agreement and
review for issues that require immediate attorney input
Review of documents and forms with potential applicants:
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Confidentiality and important of truthful information
Establishing trust and rapport
Dig deep for any criminal issues or other problems
Special role for bilingual volunteers.
Any concerns are flagged for reviewing attorney
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Understand the difficult trade off: in a perfect world, every applicant
could secure individual representation. At DACA group processing
events, applicants benefit from a brief consultation with an attorney,
but are filing their own application.
Applicants will sign a limited representation agreement
For the Winston-Salem DACA event: our potential applicants will
attend an orientation event hosted by a community partner, where they
will learn about DACA, and receive a list of documents to bring to the
event.
Law student volunteers for the Winston Salem event will have a
brief orientation meeting before the event (time to be determined)
to instruct you about our overall plan and the logistics of dealing with
so many potential applicants.
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Well-intentioned volunteers can unintentionally provide inaccurate
advice on immigration law or procedures that ends up harming the
person they are trying to help.
Law student volunteers can explain DACA requirements, review the
application and supporting documents with potential applicants, and
flag any issues for the reviewing attorney.
Law student volunteers must not advise on whether someone qualifies
or should file.
The reviewing attorney will provide legal advice; the potential
applicant will decide whether to file.
Translation should be literal (word for word); translators must be
careful not to paraphrase or elaborate on the words on the forms, or
the words of the potential applicants or attorneys.

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