Deferred Action for DREAMers – 6 Things You Must Know

[Editor’s Note: Today’s article is courtesy of Attorney Philip Eichorn, of Philip Eichorn Co., LPACleveland, Ohio. Mr. Eichorn is the Vice-Chair of the Ohio Chapter of the American Immigration Lawyers Association (AILA). He is a former Assistant County Prosecutor for Medina County in Ohio.]

Given the recent announcement by the DHS regarding Deferred Action for DREAMers, we must remember that Deferred Action does not provide permanent legal status or a path to citizenship (except as noted below). It is a stay of issuance of proceedings (or execution of a final order) against individuals who qualify, based on their age, lack of criminal history and their educational background. Deferred Action will be granted in two year increments and will be reviewed on a case-by-case basis. As with any policy change, memorandum or announcement by DHS, immigration practitioners should be mindful of the unspoken issues and potential pitfalls.

Today, we’ll cover six of those issues:

1. Notario Fraud and Unauthorized Practice of Law.

Notarios and other unscrupulous people will sell DREAM Deferred Action announcement as a “new law” and a “path to status” in order to take advantage of those desperate for legal status. The undocumented are an extremely vulnerable community. Notarios prey on unsophisticated people desperate for status. We, as lawyers and accredited representatives, must guard against an increase in predatory practices with this announcement. We must bridge the knowledge gap and protect the vulnerable. We know this is not a “new law.” We must educate people that Deferred Action is not a path to lawful status (except in certain limited circumstances). It is not a path to a “green card.” It is not a path to citizenship. Deferred Action is a temporary shield against deportation. For DREAMers, Deferred Action allows people who were brought here at a young age to live and work in the U.S. for a period of years.

2. Stay of Unlawful Presence

An issue arises with this new Deferred Action policy as to when the stay of unlawful presence begins. There is nothing in the memorandum issued on June 15, 2012 that indicates unlawful presence accrual would be stayed from the date of the memorandum. This leads me to believe that USCIS (and Department of State in the future) may indicate ULP is stayed upon receipt of the filing (which would be consistent with the filing of an I-485) or upon the date of the grant. Certainly we want to lobby for the June 15, 2012 date for all filings made within a reasonable time hereafter, but if that does not work we want to encourage CIS and DOS to stay the accrual as of the date of filing.

3. Presidential Change

This policy was enacted by the Democratic Executive Branch. This is not a law and therefore if a new president takes office it can be lifted quite easily, as it does not need to be repealed. While the initial grants would be in place for two years, what happens if Mitt Romney becomes President and lifts this memorandum? Those who have filed and supplied DHS with their biographical information are now on the radar screen for removal. It’s doubtful that ICE would allocate many resources to searching for DREAMers. This is a policy and it is subject to change without warning (just like it was issued). We must proceed with caution when filing and advise our clients appropriately.

4. International Travel

An interesting question arises about international travel for certain DREAMers. There is no indication USCIS will issue an advanced parole for those granted Deferred Action. If USCIS did issue advanced parole as a collateral benefit, it would likely be issued under INA 212(d)(5)(A). This would not permit adjustment of status after departure and reentry but issuance under this section would also not be considered a departure for purposes of triggering the ULP bars. See Matter of Arabally and Yarabally, 25 I&N Dec. 771 (BIA 2012).

5. “Significant Misdemeanor”

This is a whole new area of law that USCIS created. USCIS lists a few of the misdemeanor convictions it considers “significant” and therefore disqualifying. However, questions arise as to how USCIS will analyze this new standard. What legal procedure will be applied to determining if the conviction is “significant?” Will this be done by non-lawyer adjudicating officers? Are all crimes involving moral turpitude significant? Or just those that are at the highest level of the punishment scheme in each state? Will the petty offense exception provide an out for those convicted of one CMT? Will the categorical and modified categorical approaches be used? How about Silva-Trevino? Will USCIS rely on BIA decisions? Will USCIS subjectively determine what is “significant?” A great argument exists that if a person is convicted of a crime that does not subject them to removal, then it is not “significant.” For example, USCIS lists “domestic violence” as a disqualifying crime. In Ohio, for example, the first degree misdemeanor statute (the highest level misdemeanor) has been determined to not categorically subject someone to removal by all three immigration judges in Cleveland. Clearly we must tread carefully when filing cases with any criminal conviction as there are no standards in place (yet) for evaluating the significance of the crime.

6. Path to Status

There is one potential path to status that Deferred Action may provide. Any child under 18 years old who is granted Deferred Action will not accrue unlawful presence after they turn 18. They will be able to go to college, obtain their bachelor’s degree and hopefully employment. Their degree or other training may lead them to “specialty occupation” employment for which they can now obtain an H-1B, then depart, consular process and return without a waiver (as they have no ULP bar).

[Editor’s Note: Thanks to Mr. Eichorn for a very informative article. You can reach him here.]