Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I heard that there is now a way for kids who are illegal to get some kind of status. Is this true?

Answer: It is not exactly legal status. However, it is a manner in which they will not be deported and will be permitted to legally stay here, go to school and work. Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system.

As DHS continues to focus its limited enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including aliens convicted of crimes, with particular emphasis on violent criminals, felons, and repeat offenders, DHS will move to exercise prosecutorial discretion to ensure that enforcement resources are not expended on low priority cases, such as individuals who were brought to this country through no fault of their own as children, have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor
offenses, and meet other key criteria.

In essence, ICE will focus its efforts on deporting those who pose a security risk to the United States.

Question: When will this go into effect?

Answer: Effective immediately, certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria will no longer be removed from the country or entered into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a continuous period of not less than 5 years immediately preceding today’s
date. The use of prosecutorial discretion confers no substantive right or pathway to citizenship.

Question: Was this passed by Congress?

Answer: No. In fact, it has been at Congress for over 10 years and last year the Republican’s would not let the bill go through. Thus, President Obama has helped you and thousands of other kids by using this particular manner. Only the Congress, acting through its legislative authority, can confer these rights as to a path to residency and citizenship. However, until they act, this particular manner is the best alternative.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days.

Question: Should I try to prepare the petition now even though it cannot be filed for a few weeks.

Answer: Absolutely. There will be a rush to get these out. Also, it will take time to prepare a good DREAM Petition. Otherwise, it will just be denied.

Question: Who is eligible to receive deferred action under the Department’s new directive?

Answer: Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be eligible for deferred action,
individuals must:

1.) Have come to the United States under the age of sixteen;

2.) Have continuously resided in the United States for at least five years preceding the date of this
memorandum and are present in the United States on the date of this memorandum;

3.) Currently be in school, have graduated from high school, have obtained a general education
development certificate, or are honorably discharged veterans of the Coast Guard or Armed
Forces of the United States;

4.) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple
misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5.) Not be above the age of thirty.

Individuals must also complete a background check and, for those individuals who make a request to
USCIS and are not subject to a final order of removal, must be 15 years old or older.

Question: If I am about to be 30 years old, but over 30 when it is ruled upon, will that be ok?

Answer: That is unclear at this point. However, it would be in your benefit to immediately file while you are under 30 years old.

Question: If I have a crime that makes me ineligible, is there a solution?

Answer: Yes, you should get it vacated or reduced so that you become eligible to file.

Question: What is deferred action?

Answer: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an alien granted deferred action will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not absolve individuals of any previous or subsequent periods of unlawful presence.

Question: Can someone on deferred action get work authorizaion?

Answer: Under existing regulations, an individual who has been granted deferred action is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate an economic necessity for employment.’ Deferred action can be terminated at any time at the agency’s discretion or renewed by the agency.

Question: How will the new directive be implemented?

Answer: Individuals who are not in removal proceedings or who are subject to a final order of removal will need to
submit a request for a review of their case and supporting evidence to U.S. Citizenship and Immigration
Services (USCIS). Individuals may request deferred action if they meet the eligibility criteria. In the
coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this
process.

Question: What about people in removal/deportation proceedings at this time?

Answer: For individuals who are in removal proceedings before the Executive Office for Immigration Review,
ICE will, in the coming weeks, announce the process by which qualified individuals may request a review
of their case. For individuals who are in removal proceedings and have already been identified as meeting the
eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred
action for a period of two years, subject to renewal.

Question: Does the process result in permanent lawful status for beneficiaries?

Answer: No. The grant of deferred action under this new directive does not provide an individual with permanent
lawful status or a pathway to obtaining permanent lawful status. Only the Congress, acting through its
legislative authority, can confer the right to permanent lawful status.

Question: Why will deferred actions only be granted for two years?

Answer: Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case.

Question: If an individual’s period of deferred action is extended, will individuals need to re-apply for an
extension of their employment authorization?

Answer: Yes. If an individual applies for and receives an extension of the period for which he or she was granted
deferred action, he or she must also request an extension of his or her employment authorization.

Question: Does this policy apply to those who are subject to a final order of removal?

Answer: Yes. An individual subject to a final order of removal who can demonstrate that he or she meets the
eligibility criteria can request a review of his or her case and receive deferred action for a period of two
years, subject to renewal. All cases will be considered on an individualized basis.

Question: What about if an individual who is about to be removed by ICE believes he or she satisfies the eligibility criteria
for the new process, what steps should he or she take to ensure his or her case is reviewed before
removal?

Answer: They should immediately make a motion to Stay the Deportation based on this new policy change.

Question: If an individual who satisfies the eligibility criteria is encountered by Customs and Border Protection (CBP) or ICE, will he or she be placed into removal proceedings?

Answer: This policy is intended to allow ICE and CBP to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, for individuals who satisfy the eligibility criteria, CBP or ICE should exercise their discretion to prevent them from being apprehended, placed into removal proceedings, or removed.

Question: If an individual accepted an offer of administrative closure under the case-by-case review process or if his or her case was terminated as part of the case-by-case review process, can he or she receive deferred action under the new process?

Answer: Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they had accepted an offer of administrative closure or termination under the case-by-case review process. For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.

Question: If an individual declined an offer of administrative closure under the case-by-case review process, can he or she receive deferred action under the new process?

Answer: Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they declined an offer of administrative closure under the case-by-case review process.

Question: If an individual’s case was reviewed as part of the case-by-case review process but he or she was not offered administrative closure, can he or she receive deferred action under the new process?

Answer: Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they were not offered administrative closure following review of their case as part of the case-by-case review process.

Question: Will DHS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?

Answer: Yes. ICE and USCIS personnel responsible for considering requests for an exercise of prosecutorial discretion under the Secretary’s directive will receive special training.

Question: Will individuals be subject to background checks before they can receive an exercise of prosecutorial discretion?

Answer: Yes. All individuals will undergo biographic and biometric background checks prior to receiving an exercise of prosecutorial discretion. Individuals who have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety are not eligible to be considered for deferred action under the new process.

Question: What do background checks involve?

Answer: Background checks involve checking biographic and biometric information provided by the individuals
against a variety of databases maintained by DHS and other federal government agencies.

Question: What documentation will be sufficient to demonstrate that an individual came to the United States before the age of 16?

Answer: Documentation sufficient for an individual to demonstrate that he or she came to the United States before the age of 16 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

Question: What documentation will be sufficient to demonstrate that an individual has resided in the United States for a least five years preceding June 15, 2012?

Answer: Documentation sufficient for an individual to demonstrate that he or she has resided in the United States
for at five years immediately preceding June 15, 2012 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

Question: What documentation will be sufficient to demonstrate that an individual was physically present in the United States as of June 15, 2012?

Answer: Documentation sufficient for an individual to demonstrate that he or she was physically present on June 15, 2012, the date the memorandum was issued, includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

Question: What documentation will be sufficient to demonstrate that an individual is currently in school, has graduated from high school, or has obtained a general education development certificate (GED)?

Answer: Documentation sufficient for an individual to demonstrate that he or she is currently in school, has graduated from high school, or has obtained a GED certificate includes, but is not limited to: diplomas, GED certificates, report cards, and school transcripts.

Question: What documentation will be sufficient to demonstrate that an individual is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?

Answer: Documentation sufficient for an individual to demonstrate that he or she is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States includes, but is not limited to: report of separation forms, military personnel records, and military health records.

Question: What steps will USCIS and ICE take to prevent fraud in the new processes?

Answer: An individual who knowingly makes a misrepresentation to USCIS or ICE, or knowingly fails to disclose facts to USCIS or ICE, in an effort to receive deferred action or work authorization in this new process will be treated as an immigration enforcement priority to the fullest extent permitted by law, subjecting the individual to criminal prosecution and/or removal from the United States.

Question: Are individuals with a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors eligible for an exercise of prosecutorial discretion under this new process?

Answer: No. Individuals who have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct are not eligible to be considered for deferred action under the new process.

Question: What offenses qualify as a felony?

Answer: A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

Question: What offenses qualify as a ‘significant misdemeanor’?

Answer: A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs. There is clearly a wide variety of crimes included in this list. Thus, if you have such a crime, it should be vacated or reduced so it is not under this list.

Question: How many non-significant misdemeanors constitute ‘multiple misdemeanors’ making an individual ineligible for an exercise of prosecutorial discretion under this new process?

Answer: An individual who is not convicted of a significant misdemeanor but is convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct is not eligible to be considered for deferred action under this new process.

Question: What qualifies as a national security or public safety threat?

Answer: If the background check or other information uncovered during the review of an individual’s request for deferred action indicates that the individual’s presence in the United States threatens public safety or national security, he or she will be ineligible for an exercise of prosecutorial discretion. Indicia that an individual poses such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States. Unfortunately, having tattoos on your body may be such an indicia of being in a gang.

Question: How will ICE and USCIS handle cases involving individuals who do not satisfy the eligibility criteria under this new process but may be eligible for an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?

Answer: If an individual has a final order of removal and USCIS determines that he or she does not satisfy the eligibility criteria, then it will reject the individual’s request for deferred action. That individual may then request an exercise of prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

If an individual is currently in removal proceedings and ICE determines that he or she does not satisfy the eligibility criteria for deferred action under this process, it will then consider whether the individual is otherwise eligible for an exercise of prosecutorial discretion under its current practices for assessing eligibility under the June 2011 Prosecutorial Discretion Memoranda.

Question: Will there be supervisory review of decisions by ICE and USCIS under this process?

Answer: Yes. Both ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process.

Question: Can individuals appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion under the new process?

Answer: No. Individuals may not appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial
discretion. However, ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process. However, should new facts occur, then it will be possible to resubmit the application again.

Question: Will dependents and other immediate relatives of individuals who receive deferred action pursuant to this process also be eligible to receive deferred action?

Answer: No. The new process is available only to those who satisfy the eligibility criteria. As a result, the immediate relatives, including dependents, of individuals who receive deferred action pursuant to this process are not eligible to apply for deferred action as part of this process unless they independently satisfy the eligibility criteria. Thus, this is a consideration to go forward as it might flag unnecessarily family member.

Question: If an individual’s request to USCIS for deferred action is denied, will he or she be placed in removal proceedings?

Answer: For individuals whose requests for deferred action are denied by USCIS, USCIS will apply its existing Notice to Appear guidance governing USCIS’s referral of cases to ICE and issuance of notices to appear. Under this guidance, individuals whose requests are denied under this process will be referred to ICE if they have a criminal conviction or there is a finding of fraud in their request.

Question: Should individuals who are not in removal proceedings but believe themselves to be eligible for an exercise of deferred action under this process seek to place themselves into removal proceedings through encounters with ICE or CBP?

Answer: No. Individuals who are not in removal proceedings but believe that they satisfy the eligibility criteria should submit their request for review of their case to USCIS under the procedures that USCIS will implement.

https://atomic-temporary-10880024.wpcomstaging.com/tag/abogado-dream-act/

https://atomic-temporary-10880024.wpcomstaging.com/tag/bi-partisan-dream-act/

https://atomic-temporary-10880024.wpcomstaging.com/tag/dream/

https://californiaimmigration.us/dreamers-immigration-reform-needed/

Filed under: DREAM Act | Tagged: amnesty, Brian D. Lerner, brian lerner, california immigration, californiaimmigration.us, deportation attorney, deportation lawyer, DREAM Act, Dreamers, eimmigration.org, Immigration Lawyer, Law Offices of Brian D. Lerner, los angeles immigration, los angeles immigration attorney, out of status student, president obama dreamer | 4 Comments »

On June 15, 2012 the Department of Homeland Security formally announced that it will offer deferred action to “DREAMers.” For all the promising undocumented youth who call America home this represents the opportunity to come out of the shadows and fully embrace the only country they know. AILA embraces this bold action provide relief and enable these young people to actively contribute to our society and economy.

Eligible individuals must:

Be 15-30 years old, and have entered before age 16
Have been present in the U.S. for 5 years as of June 15, 2012
Have maintained continuous residence
Have not been convicted of a felony, a significant misdemeanor or multiple minor misdemeanors
Be currently in school, graduated or have a GED, or is an honorably discharged veteran
The deferred action offer will be available to those in proceedings, as well as to those who apply affirmatively.

State of dreamers

Dream act overview

Action against dreamers

Dreamers

Filed under: DREAM Act | Tagged: amnesty, Brian D. Lerner, brian lerner, california immigration, californiaimmigration.us, deportation attorney, deportation lawyer, DREAM Act, Dreamers, eimmigration.org, Immigration Lawyer, Law Offices of Brian D. Lerner, los angeles immigration, los angeles immigration attorney, out of status student, president obama dreamer | 2 Comments »