DEFERRED ACTION FOR CHILDHOOD ARRIVALS POWERPOINT SLIDES AILA, WASHINGTON CHAPTER FALL CONFERENCE NOVEMBER 14, 2012 Van Doan, Esq. Paula Fitzgerald, Esq. Sandra Grossman, Esq. Donald Mooers, Esq. Eligibility for DACA 1. Were under the age of 31 as of June 15, 2012; 2. Came to the US before reaching their 16th birthday; 3. Have continuously resided in the US since June 15, 2007, up to the present time; 4. Were physically present in the US on June 15, 2012, and at the time the application is filed; 5. Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012; Eligibility for DACA 6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces; and 7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Age Requirements If never been in removal proceedings or proceedings terminated then must be at least 15 years old If in removal proceedings, has a final removal order, or a voluntary departure order, and are not in immigration detention, then can apply even if under age 15 Do not qualify if over 31 years as of June 15, 2012 “Continuously Resided” A brief, casual, and innocent absence from the US will not interrupt continuous residence Brief, casual, and innocent absence: ◦ short and reasonably calculated to accomplish the purpose for the absence; ◦ not because of an order of exclusion, deportation, removal or voluntary departure ◦ the purpose of the absence was not contrary to law “Currently in School” To be considered “currently in school” applicant must be enrolled in school (on the date you apply) in: ◦ a public or private elementary, junior high, middle school, high school, or secondary school; ◦ an educational, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working towards such placement; or ◦ an education program assisting students to obtain a regular high school diploma or its recognized equivalent (i.e. GED program) Evidentiary Requirements for DACA Circumstantial Evidence C CANNOT be used to: • Establish educational requirements • Prove military service • Prove applicant’s age on June 15, 2012 In the absence of other documentation, circumstantial evidence MAY be used to prove: • • • • Physical presence on June 15, 2012 Arrival in the U.S. before turning 16 Fill in gaps in direct evidence demonstrating 5-year continuous residence Show departures during the 5 years were “brief, casual, and innocent” Law Office of Thanh Van T. Doan, LLC © 2012 Evidentiary Requirements for DACA Affidavits C CANNOT be used to: • • • • • • Establish educational requirements Prove military service Physical presence on June 15, 2012 Arrival in the U.S. before turning 16 Under age 31 Criminal history MAY be used to: • Fill in gaps to prove 5-year continuous residence • Show departures during the 5 years were “brief, casual, and innocent” **Must submit 2 or more affidavits from other people with personal knowledge of relevant events and circumstances Law Office of Thanh Van T. Doan, LLC © 2012 Evidentiary Requirements for DACA The Devil is in the Details C INSPECT documents: • Employment documents – stolen SSN, claim to citizenship, identity fraud? • Financial documents – questionable purchases? • School documents – disciplinary issues, counselor’s notes, gang activity, federal financial aid i.e. claim to citizenship? • Previous applications for immigration benefits – inconsistent information? Law Office of Thanh Van T. Doan, LLC © 2012 Evidentiary Requirements for DACA Be Resourceful!! C Other sources/forms of evidence: • Migrant Student Information Exchange (MSIX) https://msix.ed.gov/msix_html/msixImplStatus.html • State agencies – DMV/MVA • District court – moving violations • Extracurricular activities Law Office of Thanh Van T. Doan, LLC © 2012 What is a FELONY? A federal, state, or local offense that is punishable by a potential sentence to imprisonment of more than one year. Note that sentences for the same crime vary state by state. The actual sentence imposed is irrelevant Grossman Law, LLC WHAT IS A SIGNIFICANT MISDEMEANOR? Federal, state, or local criminal offense that is: ◦ Punishable by more than five days but less than one year, AND ◦ Involves the following characteristics: Violence, threats or assault, including domestic violence; Sex offenses: sexual abuse or exploitation; Property offenses: burglary, or fraud; DUIs: Driving under the influence of alcohol or drugs; Obstruction of justice, bribery, or unlawful flight from arrest, prosecution or the scene of an accident; Unlawful possession or use of a firearm; Drug distribution or trafficking; *possession will be a negative discretionary factor but no longer a disqualifying crime Grossman Law, LLC Significant misdemeanor continued… If not one of listed offenses, an offense for which the individual was sentenced to time in custody for more than 90 days. •Does not include suspended sentence. •*”DHS retains the discretion to determine that an individual does not warrant DA on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.” Grossman Law, LLC WHAT CONSTITUTES MULTIPLE MISDEMEANORS? •Barred from DA if convicted of three or more “non-significant misdemeanors” which includes any misdemeanor punishable by imprisonment of more than five days and less than a year that is not identified as “significant misdemeanor” oWill only be non-significant if the person received a sentence of 90 days or less. •Persons with three or more non-significant misdemeanors not occurring on the same day and not arising from the same act or scheme of conduct, are ineligible for DA. •A minor traffic offense will not be considered a misdemeanor for purposes of this process Grossman Law, LLC Crim. Convictions - Considerations •You are barred for any of the above criminal convictions unless “DHS determines there are exceptional circumstances.” •Obtain a copy of your client’s entire criminal history: oFBI Report oCertified Disposition oConsider lawyer •Juvenile convictions—USCIS has only said that a juvenile conviction “will not automatically disqualify you” •They will use a totality of the circumstances approach •Same with Expunged convictions Grossman Law, LLC 15 Criminal issues continued… National security or public safety threat includes: gang membership, participation in criminal activities, or participation in activities that threaten the U.S. Grossman Law, LLC 16 Scenario 1: Oscar, a 16 year old boy from El Salvador, comes to your office asking to apply for DACA. He tells you that he entered the United States at age 11 by crossing the border with a coyote in April 2007. He is currently in his sophomore year of high school and has no criminal history. When you ask him where his parents are, he tells you that his mother is in El Salvador but that he doesn’t know who his father is. Scenario 2: Sunny was 5 years old when she entered the United States with her parents on a visitor’s visa in 1989. In 1998, Sunny and her sister report to the school counselor that their mother was verbally and physically abusive. Child protective services (CPS) was called and Sunny and her sister are placed in foster care. Sunny’s mother is charged with child abuse, but the prosecutor chooses not to pursue the case. After many attempts to reunify Sunny and her sister with the mother, the Court concludes that it is not in the children’s best interest to be reunited with either parent; it is not in the children’s best interest to return to their native country; and the children would be placed in long-term foster care under the Court’s jurisdiction. Based on these findings, an application for Special Immigrant Juvenile Status (SIJS) is filed in 2002, but is not accepted by USCIS because the check issued by social services had bounced. After graduating from the Best High School, Columbia, Maryland, Sunny has dreams of attending nursing school, but doesn’t have the money. The school counselor tells her that she can get financial aid if she can straighten out her immigration status. Sunny makes an InfoPass appointment where the friendly agent assures her that the folks at ICE will be able to help her. ICE serves Sunny with an NTA. What are her options? Scenario 3: Maria and her mother EWI’d from Honduras when Maria was 5 years old. They have lived in the US for the last 15 years. They left their home country in part because Maria's father was abusing her and her mother. Maria's mother tried resolving the problem with the local police but was unsuccessful. Once in the U.S., the two women tried to start a new life. Maria's mom works at least two jobs but hasn't been around much to take care of her daughter. Maria got into some bad habits in high school because she was hanging out with the wrong crowd. She was cited for a small amount of marijuana when she was 15 but placed into an alternative sentencing program through “Teen Court” in Montgomery County. She paid a small fee and performed community service, and as a result she was never prosecuted in regular court. When she turned 18, she was arrested two more times: •Once for shoplifting which carries a max sentence of one year. She was given a 6 month sentence with all of it suspended. •The other arrest was for marijuana possession. She doesn't know/remember the outcome. Is she eligible for DACA? If not, what else might be option for her? Scenario 4: Lilian, a 27 year old woman from Honduras, comes in for a consultation. She believes that she qualifies for DACA. She entered the United States without inspection with her mother in 1995. She graduated from high school in the United States and has no criminal history. She is married to a man named Mario, who is a naturalized US Citizen, but he has refused to petition for her. She discloses that Mario has hit her a few times and that he often calls her names and tries to control her. She has never reported the abuse to the police.