In the midst of immigration reform and bills going haywire, the immigrant youth can breathe a little more relaxed with the implementation of Deferred Action for Childhood Arrivals (DACA). Under this executive action by former President Barack Obama, young people who were brought to the United States illegally as children can apply for work authorization and be protected from immediate deportation.
What exactly is Deferred Action?
Deferred Action is a policy that came to action on June 15, 2012, developed by the Department of Homeland Security (DHS) designed to protect certain youth who entered the United States as children and have grown up in the country. These individuals, called Dreamers, are protected from deportation for a period of two years, which is subject to renewal.
In order to receive this benefit one must file an application for Deferred Action along with an application for employment authorization. If approved, they will be able to work in the United States legally.
In September 2017, the Trump administration ended the program. The plan was to phase out DACA for current recipients and not accept new applications for Deferred Action. A lower court, however, ruled that the administration had to continue renewing applications for DACA recipients. As a result, in February 2018, the U.S. Citizenship and Immigration Services (USCIS) resumed accepting DACA renewals but continues to not accept initial requests for Deferred Action.
It is important to note that on April 24, 2018, a federal judge issued a decision that ordered USCIS to continue accepting new requests for DACA. The court, however, gave the government 90 days to respond as to why DACA should be terminated. Accordingly, we will have to wait on the government’s response thereby making it difficult to predict the possible outcomes.
What are the requirements to apply for Deferred Action?
The applicant must have:
• Entered the United States when they were younger than 16 years of age;
• Been under the age of 31 as of June 15, 2012;
• Be enrolled in school, graduated from high school or the equivalent, or honorably discharged from
the U.S. military;
• Never been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to the country;
• Continuously lived in the United States for the five years proceeding June 15, 2012; and
• Been physically present in the United States on June 15, 2012, and at the time of the application request.
What is the procedure?
A DACA application must be sent by mail, but people can prepare applications online. There is a fee for the application that should be sent either by check or money order made out to "U.S. Department of Homeland Security." USCIS will do a thorough background check, and verify the information provided by an applicant. It is important not to lie on the petitions.
It will take several months to process the DACA request. After an individual files the paperwork, USCIS will schedule a biometric services appointment and mail the notice. If the applicant fails to attend the appointment the application will likely be considered abandoned.
In many cases, USCIS will approve the case and mail the approval notice with the employment authorization document (EAD) directly to the recipient. In certain circumstances, USCIS may schedule an interview to determine eligibility before making a decision on an applicant's DACA case.
Many eligible immigrants fear that they may put their parents and relatives at risk of deportation, if they apply for Deferred Action. Fortunately, with limited exceptions, USCIS will not share the information provided by the applicant with Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Information may be shared for assistance in the consideration of DACA, to identify and prevent fraudulent claims, for criminal investigation and prosecution, and national security purposes.
Should you renew your DACA if convicted of a crime?
If you were arrested or convicted of a new crime, it is important that you consult with an immigration attorney before attempting to renew your DACA. If possible, the individual needs to stay out of jail, because in many counties ICE may decide to detain the immigrant and try to have his or her DACA terminated. Furthermore, it is important to tell your criminal defense lawyer that you are a DACA recipient. The criminal defense attorney should work together with a criminal/immigration expert to try to get an agreement that does not disqualify a person from DACA or bars the Dreamer from other immigration benefits.
If a person pleads guilty to a charge that is a bar to DACA, he or she runs the risk of deportation. One of the most common DACA disqualifier is driving under the influence (DUI), which is considered a “significant misdemeanor.” Even if it is your first offense, pleading guilty to a DUI will bar you from renewal. In addition, DACA has been denied in instances where domestic violence is charged, but the individual is later convicted of a non-domestic violence offense.
Finally, even if a criminal charge is not a bar to DACA, but is an offense listed in the Notice to Appear (NTA) memo, the renewal request may be denied as a matter of discretion and the file may be turned over to ICE. In fact, if a person elects not to renew his or her DACA, but comes within the NTA memo, the matter may be referred to ICE according to DHS policy.
Fortunately, there are remedies that an experienced immigration lawyer may be able to pursue under these circumstances. Speaking with an attorney will help you explore your options and lead you to the right path after careful consideration of your case.
In California, a process called deferred entry of judgment allows people charged with a drug offense to go into drug treatment and have a clean slate if they complete it -- after they plead guilty. Immigrants, however, are at risk of accepting deferred entry of judgment because of the immigration consequences that occur upon pleading guilty. A guilty plea under federal law exposes non-citizens to deportation and permanent family separation even before they have the time to complete a drug treatment program.
Under the existing deferred entry of judgment program:
An eligible individual may have entry of judgment deferred, upon pleading guilty to the offense(s) charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not do satisfactorily in the program, does not benefit from the program, convicted of new crimes, or is involved in criminal activity rendering him or her inappropriate for diversion, the court enters judgment and proceeds to sentencing. If the offender completes the program, the case is dismissed.
A person qualifies for deferred entry of judgment if he or she has (1) no prior controlled substance conviction; (2) the charged offense did not involve violence; (3) the charged offense is listed in the diversion code section (4) the record does not indicate that probation or parole has ever been revoked without being completed; (5) no previous grant of diversion; and (6) was not convicted of a felony within 5 years prior to the alleged commission of the charged offense.
This bill would make the deferred entry of judgment program a pretrial diversion program:
Under the pretrial diversion program created by AB-208, a defendant would enter a plea of not guilty and waive his or her right to a jury trial. Thereafter, the court would postpone proceedings in order for the defendant to enter a drug treatment program. The bill would require the court, if the accused does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and restore criminal proceedings. If diversion is successfully completed, however, the law would require the criminal charges to be dismissed.
AB-208 seeks to mitigate consequences to non-citizens by changing the current process from deferred entry of judgment to pretrial diversion. While the current law dismisses a case upon successful completion of drug diversion, a non-citizen may still face immigration consequences, including deportation or the prohibition from becoming a U.S. citizen. This, of course, is an injustice to immigrants to this country. Moreover, U.S. citizens also benefit from this law by avoiding federal consequences including the loss of federal housing and educational benefits. This new law keeps families together and helps both immigrants and U.S. citizens.
This article will give you a general understanding of how family-based immigration in the United States works and how it can help a foreign national get permanent residency (Green Card).
Permanent resident status gives a family member the privilege of living and working in the United States. Family-based immigration is the process of applying for a green card through a spouse or other family member. This process can be extremely complex, long and frustrating for the applicant who will need fingerprints, undergo a thorough medical examination, and undergo a thorough security check.
Family-based immigration requires the participation of at least two family members, a petitioner and a beneficiary. The petitioner must be a U.S. citizen or permanent resident who wants to sponsor a foreign national to get a green card. The beneficiary is the individual who has a visa petition filed on his or her behalf. In some categories, the beneficiary may have a spouse and children that qualify as derivative beneficiaries.
An unlimited number of visas can be provided to immediate family members of U.S. citizens every year. Immediate relatives of U.S. citizens are defined as:
Family members who meet these requirements must file a petition in order to qualify for an I-R visa.
Family Preference Visa categories
Family preference categories are for individuals who are not considered “immediate relatives” under the law; however, have a close family relationship with a citizen or legal permanent resident. The government has created specific categories of family members who qualify for family preference visas and set limitations on the number of immigrants of each category who can enter the country every year. Categories include:
You are not eligible to sponsor a family of immigrants, such as grandfather, aunt or uncle, cousin or in-law.
What are my options if I want to apply for my spouse?
A spouse of a United States citizen may apply for permanent resident status and obtain a work permit within the United States, if the spouse:
Failure to meet these requirements will require that the spouse leave the United States and return to their home country to proceed with the process of Consular Processing (applying for permanent residence from abroad).
What specific criteria should a marriage meet to be considered valid for immigration?
Immigration officials conduct very detailed reviews of marriage relationships when a case is based on a marriage. According to a recent report by the Department of Homeland Security, almost half of all cases of marital immunity are fraudulent.
At a minimum, for a marriage to be recognized as valid for immigration purposes, each party must have been legally able to marry at the time of the marriage (i.e. all previous divorces were final), the marriage ceremony must have been considered legal under the laws where it was performed, and the couple must have married out of a true desire to enter into a marital relationship and not just for immigration purposes.
Common Law marriages are accepted for immigration purposes if the law in the place of residence of the couple legally recognizes them. In these cases, however, extra evidence generally needs to be submitted to support the common law marriage-based petition. Customary marriages, those performed according to local custom but not licensed by civil authorities, may be valid if the law of the country where the marriage occurred recognizes the marriage as valid.
What Are My Options If I Want to Apply for My Fiancé(e)?
If the couple is not yet married, a U.S. citizen may apply for a K-1 visa in order to bring his or her love one to the United States in order to get married. The couple has only 90 days in which to legally marry in the United States. Once the couple is married, the immigrant relative can then apply for permanent resident status. In order to obtain a fiancé(e) visa, the couple must prove:
It is important that immigrants carefully plan before submitting any family-based immigration petition with USCIS. Applying for a benefit that an immigrant is not eligible for could result in removal proceedings and possible deportation from the United States.
A person convicted of a crime is required to pay a fine and/or fees within a certain deadline. Senate Bill 185 would require the court to determine whether a person is indigent and how much of any associated fine, fees, or other financial penalties that person can afford to pay.
Under the proposed law if an individual is indigent, the court must reduce all fines and fees by 80% on all pending charges. A person must prove that he or she is indigent by providing specified information under penalty of perjury. In fact, the court can restore fines and fees to the full amount if a person willfully provides fraudulent information with regard to his or her financial status.
Furthermore, SB-185 requires the court to offer payment plans to everyone charged with an infraction. For those that are not indigent payments would be no more than 5% of one’s monthly income. For those that are, a person will have a $0 monthly payment plan until the individual’s financial circumstances change. If there is no change in 48 months, the courts must discharge any outstanding balances.
The current law authorizes the court to notify the Department of Motor Vehicles.
When a person does not appear in court or does not pay a fine current law requires the Department of Motor Vehicles to suspend and prohibits from issuing a driver’s license. The proposed law would remove such requirement. In fact, this bill would also prohibit the court from issuing a bench warrant for failing to appear in court for traffic violations. SB-185, however, does not alter the law related to driver’s license suspensions for reckless driving or driving under the influence.
Another significant benefit of SB-185 is that it reduces the penalty for failure to appear and failure to pay from a misdemeanor to an infraction. It goes without saying that any misdemeanor conviction can permanently damage your reputation, your ability to get a job, and all other aspects of your life.
At the end of the day the senate bill would ease the burden of traffic tickets on the indigent. Studies have shown how damaging it is to all people, in particular the indigent, when you are unable to resolve unpaid traffic tickets. Countless amount of Californians are in significant debt with the court and lose their driver’s licenses and income as a result. This is a great step forward.
The California Senate took a step in addressing what numerous described as an expensive failed policy that worsened racial disparities in sentencing by passing SB-180.
The law allows greater funding for programs and services that improve public security, including community-based mental health and substance abuse treatment, job programs, and housing. How? The law would reduce jail congestion and stop the need to build and staff expensive new prisons. Additionally, it addresses increasing racial disparities in the criminal justice system. Though the amount of drug use and sales are similar across racial lines, minorities are far more likely to be arrested and prosecuted for drug law violations.
The bill repeals the three-year sentence enhancement for some prior drug convictions; part of a reform package that lawmakers say would defend juveniles and make parity in the justice system.
Enacted in 1985, the enhancement was intended to deter drug sales and lessen availability of drugs in California. Experts agreed that it failed on all counts – drugs are cheaper, stronger, and more widely available than at any other time in U.S. history.
How the law worked prior to SB-180
In California, a person convicted of sales can face a sentence of three to five years imprisonment, plus an additional three years in jail for each prior conviction for related drug offenses. For example, a person facing a new conviction for possessing a very small amount of drugs for sale, which has a base penalty of up to five years, could face an extra nine years if they have three prior convictions for sale. This is not an unusual scenario for addicted, homeless drug users. These types of drug enhancements are the foremost cause of sentences over 10 years in county jail, according to research.
The policy implication of SB-180
SB-180 is a modest reversal of harmful policy under the so-called war on drugs, which excessively targets minorities and does not stop the flow of narcotics. The old law has wasted millions of California taxpayer dollars. Eliminating the enhancement would free up funds that could be invested in programs and services that reduce crime and improve public safety.
Furthermore, the enhancement punishes an individual twice for prior drug convictions without addressing the root cause of a person’s involvement with drugs. This sentence enhancement has contributed to jail and prison congestion, and does little or nothing to deter drug sales, or to lessen the amount of drugs or drug dealing in communities. The new law is a step forward in restoring balance in the criminal justice system.