DACA: A risky proposition for anyone who does not fit the ideal applicant model

By Steve Maggi, Esq.

The Deferred Action for Childhood Arrivals (“DACA”) launched on August 15, 2012, a product of an Executive Order signed by President Obama, is designed with one person in mind, even if it purports to be accessible to many young illegal immigrants. That person is the model student who has kept his or her nose clean, perhaps finished high school or college, with aspirations and goals to be a model citizen, i.e. what every American parent would want their children to be like. Of the estimated million-plus illegal immigrants who are supposed to be eligible for DACA, how many fit this perfect ideal? It is hard to say, but the forms and their confusing instructions, as well as multiple Frequently Asked Questions (FAQs) memos released by USCIS have exposed many unanswered questions, many holes that applicants can fall through, and some traps which may put applicants in a compromising situation in the future.

In reading media coverage of the DACA (See my blog article at www.smalawyers.com), I noticed how media not only misunderstood the new regulation but also was not capable of actually analyzing in order to assist its readers in making educated, informed decisions about what to do in their unique situations, because no two applicants’ cases are identical. I cannot emphasize enough how important it is to consult with an experienced U.S.-licensed and specialized immigration attorney before making the decision to apply for DACA.

The Frequently Asked Questions memorandum released by USCIS on August 31, 2012, includes a question whether the information provided by applicants could be used for immigration enforcement purposes, and the answer is convoluted and confusing, offering no assurances and stating that if a person triggers conditions for a potential notice to appear in removal proceedings, that those agencies may indeed be contacted, and then ends with this qualification: “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.” http://www.aila.org/content/fileviewer.aspx?docid=41136&linkid=251213.

What this means is that there is no guarantee that the information contained in a DACA application will not be shared by USCIS with other agencies capable of prosecuting criminal offenses or beginning deportation proceedings based on new information. Additionally, if someone omits and hides part of their criminal history and it is discovered, it may also trigger a notice to appear before an immigration judge and potential deportation. If you have any criminal past, including arrests, convictions, i.e. anything more than a parking ticket, you should have your history screened to make sure it won’t make you deportable. You also need to make sure that your immigration history does not make you ineligible for adjustment of status or inadmissible if you leave the country in the future.

It is very important for people to understand that being granted deferred action does not grant the applicant any legal status whatsoever. The possibility of being able to adjust status based on DACA is not possible right now, as it would require Congressional legislation. The only benefit of DACA right now is that the applicant can also apply for work authorization and work legally, and even that is with the added requirement of showing that the person has the economic necessity, which is based on a nonexistent, subjective standard.

DACA supposedly is open to applicants who entered without inspection (“EWIs”), those immigrants who entered the U.S. illegally through Mexico or Canada, on a shipping vessel, or with false documentation through a land or sea port of entry. EWIs do not have any documentation from the U.S. government that they actually entered the U.S., and therefore there is no record of their entrance in the federal immigration database. This group makes up a significant percentage of those who USCIS claims can apply for DACA. However, it is very difficult to prove that you meet the requirement of “continuous presence” in the U.S. for a minimum of five years when there is no way to prove the specific date you actually entered the U.S. On top of that, the application form contradicts itself by allowing people to put that they left entered multiple times since their first entry, thus requiring an admission of the fact that their presence was not continuous, and exposing them to the double-jeopardy prong of the immigration law which makes people who have more than one entrance without inspection ineligible for adjustment of status, even if they marry a U.S. citizen in the future.

Among the numerous pitfalls and traps in DACA is the notion that those granted deferred action status will be eligible for advanced parole, which is a form of permission to travel outside the U.S. for a specified purpose. While in fact USCIS may allow those granted deferred action to get advanced parole, they do not guarantee that the person, upon leaving the U.S., is not automatically inadmissible. If, for example, you entered the U.S. under the age of 16 with a legitimate visa and then overstayed your legal status and remained illegally for more than one year, and then were advanced parole, you would automatically be barred from re-entering the U.S. for ten years. USCIS does not mention this.

All of the examples above are highlighted not just as a criticism of the holes in the new immigration measure DACA, but also as a warning: If you do not fit the ideal applicant model of the squeaky clean student or graduate with no criminal history, preferable no EWI and no trips outside the U.S. since you first arrived, your chances of getting your DACA application granted may not be high, and applying may actually out you in a compromising position. Make sure you consult with an experienced immigration attorney before you roll the dice on your future.

If you have any questions about DACA or any immigration issue, please contact Steve Maggi at: smaggi@smalawyers.com or by calling (212) 402-6885.

Posted by admin on Sep 14 2012. Filed under Community News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry