DACA Questions and Answers with Attorney Cheryl R. David

Our August DACA Webinar generated a significant amount of questions from attendees. Today’s article is a continuation of our Q&A sessions to address some of those concerns expressed by many of our attendees. Attorney Cheryl R. David, Law Office of Cheryl R. David is based in New York City. Ms. David has been practicing immigration law for 16 years in all areas of immigration law.

1. What’s the most common concern you’ve noticed when potential DACA clients have come to you for assistance?

The primary concerns expressed by my DACA clients revolve around issues of confidentiality and future immigration enforcement. Although the individuals are happy for the opportunity to come “out of the shadows,” old concerns remain about making themselves known to immigration. Many are worried about how the information they provide could be used against family members who are not DACA eligible. Another pressing concern is the fate of the DACA program under a potential Romney administration. These issues are some of the hardest to advise our clients on, as much is unknown at this time.

2. What risks do you associate with the request in Form I-765 for an applicant to indicate “all previously used Social Security Numbers,” especially where the applicant may have used a number that was not their own?

The admission of a fraudulent act, depending on jurisdiction, could potentially be a crime involving moral turpitude. Admitting the use of fraudulent documents could also present the possibility of criminal charges. Additionally, if in the future a more permanent benefit becomes available to the DACA client, the fraud will have been disclosed and could present a barrier to eligibility for a green card in the future.

Another issue for advocates to look into is whether a client used a fake social security number to gain employment, and if so, what status they claimed on their I-9 forms. Most people don’t think about the I-9 form as an immigration form, so it is often overlooked. If a client falsely claimed U.S. citizenship on an I-9 they are additionally facing a permanent bar to lawful permanent residency in the future.

3. What are some of the best tips you’ve given to DACA clients to help them locate and secure the necessary documentation that will support their cases?

It is important to stress to DACA clients that they are required to demonstrate continuouspresence in the U.S. for the five years preceding the DACA announcement. In other words, it is not sufficient to provide evidence that they were present in the U.S. in June of 2007 alone; they must demonstrate presence for every year thereafter as well.

In my practice, we sit down with our clients and go through their lives, year by year, to determine what kind of documentary evidence we can obtain. The most obvious evidence is school records. Getting copies of school transcripts, enrollment records, or report cards is a great way to established continuance presence.

If the individual was not in school in the last five years, we look towards any work records, housing records like leases or rent payment receipts, and financial records such as bank and credit card statements, utility bills, or tax returns.

It is helpful to have the clients think back to where they were in their lives and what they spent their days doing. If they were members of a gym, or if they ever visited a doctor’s office or hospital, then there will be obtainable records placing them in the United States at that time. Clients are often inclined to obtain and submit fewer documents rather than more, but I prefer to provide as much documentation as possible. I would also suggest including a complete copy of the applicant’s passport.

4. How would you advise applicants who don’t meet the age requirement but may otherwise qualify for deferred action based on prosecutorial discretion?

This is tricky. At the moment, we have no way to know where prosecutorial discretion is headed or for how long it will be available. For those “DREAMers” who do not fall into the DACA category and who are not already in removal proceedings, coming forward and making themselves known to immigration is still taking a serious risk.

At the moment, my advice for those who do not qualify for DACA is to wait. I would not voluntarily surrender anyone to immigration to apply for deferred action based on prosecutorial discretion if the individual is undocumented and without any other available form of relief. However, if an individual is already in removal proceedings they should absolutely seek prosecutorial discretion, even if they are not DACA eligible. For individuals with a final order I am suggesting that they come forward and seek either deferred action or a stay of removal with the Enforcement Removal Office.

5. What are your thoughts on the future of DACA? How will it change if we have a new President elected in November 2012?

The Obama administration has made it clear that if President Obama remains in office, the DACA program will continue. Obviously the ultimate hope is that President Obama will pass comprehensive immigration reform and give “DREAMers” a path to citizenship.

However, if President Obama is not re-elected, there is no certain future for DACA. In fact, Mr. Mitt Romney has already said that he would end the program. Although my personal opinion is that there would be too high a political cost to ending DACA outright, I am advising individuals with a questionable criminal or immigration history to wait until after the November elections to apply for DACA.

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Ms. David is the Principal at Law Office of Cheryl R. David. She has been selected the last three years as a Super Lawyer in the State of New York and currently serves as a Director on the National Board of Governors for the American Immigration Lawyers Association, and previously was national chair of the Executive Office for Immigration Review liaison and Immigration Customs Enforcement Committee on behalf of AILA. Locally, she was the Chapter Chair of the New York Chapter, Chair of the New York ICE Detention and Removal Committee, and founded the AILA Pro Bono Juvenile Docket in New York. In addition, Ms. David serves on the Board of Directors of the City Bar Fund of the New York City Bar. Please susbscribe (below) to our blog to keep updated on DACA and other immigration related practice management tips.