Congress Passes Omnibus Bill.

This weekend, Congress passed a $1.1 trillion spending bill that will fund the majority of the government through September 2015, but will only fund DHS through February 2015. Although Senator Cruz (R-TX) attempted to defund the President’s executive action during the Senate debate, his motion was defeated by a 78-22 vote.

Senate Confirms Sarah Saldaña as Director of ICE

Despite GOP objections, the Senate voted 55-39 to confirm Sarah Saldaña as the Director of Immigration and Customs Enforcement (ICE). Ms. Saldaña will be the first Latina to lead the agency.

The AAO sustained the appeal and withdrew the director’s decision,

The AAO sustained the appeal and withdrew the director’s decision, finding that the petitioner established by a preponderance of the evidence that the beneficiary’s duties as a chief operating officer were managerial. Specifically, the AAO noted that the beneficiary would be primarily engaged as a manager based on his supervision of subordinate managers and supervisors, and thus qualified for an L-1A visa.

IJ Grants Withholding to Single Mother Fleeing Violence in Guatemala

The IJ granted withholding to a single Guatemalan woman and asylum to her two children, after giving de minimus weight to the record of sworn statement completed by CBP, which stated that the respondent was coming to the United States to work and had no fear of return. The court noted the long-standing phenomena repeated by a substantial percentage of asylum applicants who claim that they informed CBP of their fear of returning, but were told they did not have valid claims. Courtesy of Jacquelyn Kline.

DREAMERS and Immigration Reform. What is needed?

Immigration Reform is here and Dreamers can get a work permit and get to be here legally if they qualify. Brian Lerner states that Dreamers has been able to apply for DACA or Deferred Action for the last 2-3 years. However, with the new immigration reform for Dreamers, we now have an expanded DACA and more people will qualify for Dreamers.

 

Brian D. Lerner, Immigration Attorney states that the following list is the general requirements of the immigration reform for Dreamers:

The program will be open to individuals who:

 

  1. Came to the United States before reaching your 16th birthday;
  2. Have continuously resided in the United States since January 1, 2010, up to the present time;
  3. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  4. Had no lawful status on June 15, 2012;
  5. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  6. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Brian Lerner, immigration attorney states that the difference between this immigration reform for Dreamers and the last Immigration Reform for Dreamers is that it first takes out the upper age requirement. Basically, one could not be older than 31 years old at the time that the first immigration reform Dreamers was made. Now, they can be as old as they are. However, the applicant, in accordance with Brian D. Lerner, must have not been older than 16 years old when he or she entered the United States.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

Additionally, another element with the new immigration reform is that instead of having to be physically present from all the way back in 2007, they can now show that they have been physically present since 2010. Otherwise, the immigration reform for Dreamers is basically the same. One item of concern is that you have to look at the last item regarding the criminal history of the applicant. Now, with the new immigration reform for Dreamers, there is also a rather comprehensive memo from the director of Department of Homeland Security which makes clear that someone may be under priority 1, priority 2 or priority 3 or no priority at all for immigration enforcement. Thus, there is the interplay between the immigration reform for Dreamers requirement that somebody not have been convicted of a felony or significant misdemeanor or 3 or more other misdemeanors and how that interacts with the enforcement memo. Brian Lerner also states that the definition of what is a ‘significant’ misdemeanor and/or felony seems to have been clarified somewhat by the new priority memo. Assumably, if somebody qualifies for the immigration reform for Dreamers, they will not be deported – even if under a certain priority category for enforcement.  Brian Lerner states we will have to see how this plays out and hope that the immigration officials will follow properly the executive order as well as the new policy memorandum on enforcement priorities.


As  usual, with immigration reform for Dreamers, there are questions and ambiguities and issues that need to be resolved. However, in the end, it is a good expansion of the immigration reform for Dreamers and is constitutional under the law.

What evidence do you need to in order to prove the various requirements of physical presence in DACA?

The immigration reform expanded DACA and allows persons who meet various requirements to essentially get relief from deportation and removal from the United States, to be able to stay here legally and to get a 3 year work permit.

Brian D. Lerner states it is one thing to qualify for immigration reform under DACA and yet another thing to prove that you qualify. For example, one of the requirements is that you entered the U.S. before you were age 16. How can you prove this? There are various ways according to Brian D. Lerner, immigration attorney.  For example, for the immigration reform for DACA, you could provide declarations from persons familiar with when you entered the U.S. and how you entered. Of course, the more specific they can be in the declaration, the more credible and believable the declaration is.

 

Brian Lerner states you could also provide any receipts you have received when you entered the U.S. For example, invoices, rent receipts, tickets, groceries, etc. Of course, it might be many years ago you entered the U.S., and therefore, getting receipts might be difficult. Per the immigration reform requirements for DACA, you could also get tax bills you might have received when you were young. You could get your parents tax filings to show you were a dependant. If you want to school, states Brian Lerner, you could get report cards, school records, immunization records and the like.

For immigration reform, each case is different, but there are ways of properly putting together a petition so that you have a much better chance of success. Brian Lerner states in some cases, when people will try to submit the immigration reform DACA package themselves, they will put a statement to the effect: “I was here in the U.S. before I turned 16 years old”, but they will not provide one scintilla of evidence otherwise. Obviously, this will not work. Remember, states Brian Lerner, it is your burden to prove the elements for the immigration reform DACA, not Immigration’s burden to disprove it.

 

Another element, states Brian D. Lerner, that must be proven for the immigration reform for DACA is that you have been physically present in the U.S. since January 1, 2010. This is not the same type of burden that would be required as  would be the case showing you entered before you were 16 years old. This is a continuous showing of evidence, not just a single day. Thus, Brian Lerner states that under the immigration reform for DACA, you could also submit declarations from yourself and other people to verify how long you have been here and that you meet this requirement. However, if the declarations are given by persons that are not related to you, it will carry a lot more weight than for example if it is your mother or father.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

Additionally, the declarations must be of personal knowledge, not just what you might have told them. In other words, according to Brian D. Lerner, a supporting declaration must be believable, detailed and have sufficient facts to meet the burden of proving this requirement for the immigration reform for DACA. Here instead of simply showing school records from when you were 16, you could show the years of school records from 2010 up until the present. You could get evidence that you have worked and get payroll records and tax records for all those years. If you rent, you could get rental statements and lease agreements and evidence you have paid utilities for all the various years in question.


Brian Lerner states that you could get court documents if there were any court action, or you could get various records that you were under medical care or in some type of proceedings. Brian Lerner states that just submitting one form of evidence is probably not sufficient and will not meet your burden for the immigration reform requirements.

Immigration Reform and DAPA. What is it?

The immigration Reform Executive Order by President Obama has  a new kind of relief called DAPA. Brian Lerner states this will open up the doors for millions of people, but they must be notified if they qualify and they must do what is necessary to file the applications.

 

As of now, it is ordered by President Obama that the DAPA applications will be accepted starting 180 days after the issuance of the immigration reform for DAPA applicant. Hence, Brian D. Lerner, immigration attorney, explains that DAPA is the following:

The program will be open to individuals who:

  • have a U.S. citizen or LPR son or daughter as of November 20, 2014;
  • have continuously resided in the United States since before January 1, 2010;
  • are physically present in the United States on November 20, 2014, and at the time of

applying;

  • have no lawful immigration status on November 20, 2014;
  • are not an enforcement priority, which is defined to include individuals with a wide range of

criminal convictions (including certain misdemeanors), those suspected of gang involvement

and terrorism, recent unlawful entrants, and certain other immigration law violators

  • present no other factors that would render a grant of deferred action inappropriate; and
  • pass a background check.

 

See Brian D. Lerner speak about the new DAPA program discussed in the immigration reform USA news

 

Thus, this DAPA is meant for persons who have children born here in the U.S, are U.S. Citizens or Lawful Permanent Residents. Brian D. Lerner states over the years, families have been torn apart. Granted the parents were here in the U.S. illegally, but they had families consisting of children and they were deported from the U.S. They suffered, and their families suffered and their children and spouses suffered. Thankfully, claims Brian D. Lerner, DAPA has come along to essentially allow these people who qualify to stay here in the U.S. under the immigration reform for DAPA.

 

Some people are thinking that anybody and everybody is allowed to apply for DAPA. However, explains Brian D. Lerner, that could not be further from the truth. In tact one of the elements of this particular relief specifically states that the person is not to be an enforcement priority. Brian Lerner states that under the immigration reform for DAPA that there was a very detailed memorandum put out by the Secretary of Homeland Security and that it defines with some specificity what are to be considered the highest enforcement priority under Priority #1, the mid level priority under Priority #2, and the lowest priority under Priority #3.


Thus, the issues that will exist is whether or not under the immigration reform for DAPA if somebody is under a particular Priority of enforcement whether they can still put together a convincing immigration reform DAPA packet. The DACA part of the immigration reform does have some specific exceptions which have been placed into the requirements. Unfortunately, the immigration reform for DAPA does not. It is unclear, states Brian Lerner, whether this was intentional, or whether it was purposeful and that President Obama did not want to allow DAPA applicants to be able to apply for DAPA if they do have a criminal history. In that case, it is still possible to have a criminal history and not be under an enforcement priority. However, this would take considerable argument to make sure that you properly argue you are not an enforcement priority and you qualify for DAPA. You don’t want to risk being put into removal proceedings because you do not properly prepare the DAPA application. Thus, the immigration reform for DAPA exists and will allow millions of people relief, but Brian Lerner states you must do it correctly.

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