Last Wednesday, August 22, 2012, our DACA Webinar generated a significant amount of questions from attendees. Today’s article seeks to address some of those concerns expressed by many attendees. Attorney Randall Caudle, Law Office of Randall Caudle is based in San Francisco, California. Mr. Caudle has been practicing immigration law for 17 years in all areas of family immigration.
1. For individuals who have “aged out” from qualifying under the DACA guidelines, what are their options?
For starters, individuals who are under 15 years of age can “age into” the application process once they turn 15. Individuals who are in proceedings, no matter what age, can always ask for deferred action from ICE outside of DACA (this has always been the process), if they have a sympathetic case.
Individuals who were 31 or older as of June 15, 2012 do not qualify for DACA under the guidelines. Prosecutorial discretion is still available, but given how little prosecutorial discretion has been exercised, in my opinion, it’s not a highly viable option.
2. What would qualify as a “brief, casual and innocent” exit out of the U.S.?
USCIS has a lot of discretion in interpreting what “brief, casual and innocent” means. As a rule of thumb, if I am not comfortable with the scenario the client has provided me with regards to the amount of time they left the country and a compelling reason for departure, then I would not necessarily be willing to file a DACA case for this particular client at this juncture.
For example, if the client left the country for a funeral of a close family member, that is a compelling reason. However, if the client left the country for several months, that may not qualify as a brief, casual and innocent. I would be reluctant to file a case where the client left for a prolonged period of time as this in essence would be a “test-case.” I would not know how USCIS would respond to this type of scenario and the risks are great to the client (documenting to USCIS an illegal re-entry and permanent bar). There is simply not enough information to fully qualify what the risks would be to the client if they went ahead and filed a DACA request. I would wait to see if any further guidance might be available either from other colleagues or from USCIS directly.
3. The issue of a second re-entry into the U.S. without documentation raises the issue of permanent bars for the future. What’s your interpretation of this risk with regards to DACA?
Clients receiving a grant of DACA, they will receive protection for the two-year duration and not likely to be criminally prosecuted and as long as DACA is in effect. However I would be very concerned about filing a DACA request without first warning my clients in writing about the substantial risk that an illegal re-entry into the U.S. would have in triggering the permanent bars and possible criminal prosecution for my clients. We are not sure what the status of the permanent bar may be, whether it will be eliminated or revised, if we ever see Comprehensive Immigration Reform. USCIS (and possibly ICE) would certainly be reviewing my clients’ information and I would ultimately want my clients to weigh those risks and decide for themselves if they still want to file a DACA request.
Having said that though, most DACA clients I have counseled thus far are still very excited about DACA and its potential benefits and are anxious to be able to live a normal life for at least two years and work in the field in which they were educated. Thus, it is important clients understand all risks before they decide to file a DACA request.
4. What about if potential DACA clients have knowingly used false documents in the past?
Fraud is a serious charge and USCIS Director Mayorkas has expressed serious concerns for reviewing applications for fraud. Any application that admits fraud, whether it is document fraud, marriage fraud, or any other form of fraud, will, in my opinion, certainly get flagged by USCIS and potentially be corralled into an investigation for removal by ICE.
5. Has DACA generated potential clients who have come to you, who may also qualify for other immigration benefits (U Visa, VAWA, 245i AOS, and Special Immigrant Juveniles)?
Absolutely! This is one of several ways potential DACA clients benefit by seeking legal advice from experienced attorneys. People are under the impression that DACA is simple but it is not. I have clients who may benefit from other immigration applications who would not have been able to identify these issues on their own or if they had sought the advice of inexperienced legal assistance. These cross-over cases are eligible for other forms of relief. Many DACA applicants with U.S. Citizen spouses, for example, will benefit if/when Stateside Waiver Processing becomes a practical reality.
6. How are individuals with final orders of removal still eligible for DACA?
If individuals are not currently detained in proceedings, they can file a DACA request with USCIS. If individuals are detained, then they will need to go through ICE and the Public Advocates Office. More information is available on the FAQ online.
Keep in mind attorneys would also want to ensure what impact DACA might have on family members who may also have final removal orders, especially if the family members are living in one household with the potential DACA applicant.
One final point is to remember that USCIS will consider the requestor’s entire immigration history in any grant of discretionary relief. It is therefore very important for attorneys to ensure they receive a complete picture of their client’s immigration history well before any decision to file is made.
7. What are your thoughts on the future of DACA? How will it change if we have a new President elected in November 2012?
On the chance that Mr. Romney wins the 2012 presidential election, it would be a logistical and public relations nightmare to place all the existing DACA grantees into removal proceedings. Our immigration courts are currently overwhelmed and backlogged. With that said though, Mr. Romney could still suspend DACA for all future applicants. I will continue representing my DACA clients through whatever the future brings.
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Thanks to Mr. Caudle for his valuable expertise and opinions. You can tune in to his Radio Interview regarding DACA on Friday, August 31, 2012 at 8:00am (PST) on KWMR Radio, 90.5 FM Point Reyes and 89.9 FM Bolinas. He’ll be interviewed on the Barrio Vibes Radio Program by Solange Echeverria, KWMR West Marin Community Radio regarding the Deferred Action for Childhood Arrivals (DACA) Process. You can also follow Mr. Caudle’s DACA blog to stay updated on DACA. Please susbscribe (below) to our blog to keep updated on DACA and other immigration related practice management tips.
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