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.
Permanent resident status is a complex process that enables an immigrant to reside and work on a permanent basis in the United States.
Benefits of Being a Lawful Permanent Resident
How to Become a U.S. Citizen Through Naturalization
What is naturalization? In essence, it is the process of being a citizen for an individual not born in the United States. The application for naturalization is Form N-400 and can be obtained from the USCIS website. However, there are specific requirements that must be met before the application can be processed.
A person is given a permanent resident card commonly known as a “green card.” There is a set number of years that a resident is required to be in continuous residency in the United States. Any stay outside the U.S. for more than 6 months can disrupt continuous residence. Permanent residents need to maintain this continuous residence as well as physical presence in the U.S. for five years. If you are married to a U.S. citizen there is a three year requirement.
Naturalization Requires Good Moral Character
The law has specific requirements regarding whether a person possesses good moral character. Specifically, your criminal record. There are offenses that you cannot be convicted of, meaning you can be barred from applying for naturalization. There are also offenses that can temporarily bar an individual from qualifying for citizenship. The following crimes are examples of those demonstrating a lack of good moral character: crimes against people with the intent to harm, violating controlled substance laws, illegal gambling, prostitution, and terrorist acts to name a few. Not telling the truth during the USCIS interview can also be grounds for denying your citizenship.
A requirement of understanding the English language must be demonstrated by the person seeking naturalization. The applicant must be able to read, write, and speak simply words and phrases from “ordinary usage in the English language.” There is also a requirement for the applicant to have a basic knowledge of U.S. history and government. Applicants over the age of 50 have different exemptions for taking the English test. For example, if the applicant is over 50 years of age and has been a permanent resident for at least 20 years, they do not have to take the English test, but do have to take the civics test.
As an applicant for citizenship, you must show a willingness to support and defend the United States and the Constitution. There must be a declaration of “attachment” to the U.S. and the Constitution by taking an Oath of Allegiance. This oath makes the applicant promise the following: to renounce foreign allegiances, support the Constitution, and serve the United States.
Do Not Lose Your Permanent Resident Status
Lawful Permanent Resident (LPR) status in the U.S. is a privilege that can be revoked. It means that you can lose your LPR status even after receiving a green card. For example, you will lose your LPR status when you abandon your permanent residence in the U.S., or when you become deportable for committing a serious crime or violating U.S. immigration laws.
Many are of the belief that after getting a green card, they can travel freely or even relocate to their home countries. Though an absence from the U.S. does not automatically result in cancellation of LPR status, an extended absence can lead to the government questioning an immigrant’s intent to remain a permanent resident of the U.S.
Apart from how long you have been absent from the U.S., the USCIS will look to many other factor that reflect your intent such as:
It is important to note that no single factor mentioned above is controlling with regard to your intent to maintain permanent resident status. The government will analyze all other relevant factors to come to a decision.
Generally, if you leave the U.S. for one year or less, you can use your green card as a reentry document. However, if you are absent from the U.S. for more than one year, you might face difficulties reentering the U.S. The USCIS considers the absence of longer than one year as a possible abandonment of U.S. residency. If you will be out of the U.S. for more than one year, you may need to get reentry permits or special immigration visas.
Completing the application, having fingerprints taken, being interviewed by USCIS, taking the English and civics tests, and taking the oath are all necessary steps to becoming a U.S. citizen. Contacting an immigration attorney can be helpful in making sure all necessary steps are taken in applying for citizenship.
If you are not a citizen of the United States and have ever been arrested, detained, or charged with a crime or any other type of violation, the government may try to deport (remove) you from the United States even if you were not convicted or served time in jail and even if you complied with all the court-imposed conditions.
If you are deported from the United States or leave voluntarily, you may be barred for years from entering the U.S. If you return to the United States after being deported without the authorization of the government, you can spend several years in a federal prison.
In addition, if you are a permanent resident and leave the United States pursuant to a removal order, you may lose your social security benefits for life. That means that if you have worked and paid taxes in the United States, you will lose all the money you paid in social security and will have no retirement benefits in the United States, whether you paid taxes for one year, ten years, or 50 years.
Section 237 of the Immigration and Nationality Act lists the different classes of deportable individuals. A person can be deported for the following reasons:
What to Really Expect in Removal Proceedings
While placement in removal proceedings is serious, it must be understood that a person unlawfully present in the United States cannot just be "thrown out of the county." Generally, removal from the United States must undergo certain due process procedures.
Except in the case of expedited removal, a person will first be allowed a full hearing before an immigration judge. Customarily, a removal proceeding has the following phases:
Bond Hearing: When an individual is in immigration custody, he or she may request a bond hearing. During a bond hearing a respondent (the individual in proceedings) may request to pay a bond in exchange for release from immigration custody. In certain cases a respondent may be ineligible for bond. Should a respondent be eligible for a bond, he or she is released from detention pending removal proceedings.
Ordinarily, a bond hearing occurs before a master calendar hearing. At times the bond hearing occurs at the same time as a master calendar hearing; however, the hearings are two separate proceedings.
Master Calendar Hearing: During a master calendar hearing the respondent is given the opportunity to address the reasons why the government is seeking removal from the U.S. and provide any defenses. Before or during a master calendar hearing the government will issue the respondent a Notice to Appear (NTA). The NTA is a document that identifies the specific reasons for removal, often referred to as allegations, and the legal basis for removal, often referred to as charges.
The respondent will either admit the allegations and concede the charges in the NTA or contest the NTA. Following the pleading of the NTA, the respondent is given the opportunity to designate a country of removal, identify any defenses of removal (cancellation of removal, asylum, etc.), and file applicable applications.
Individual Hearing: The final hearing in removal proceedings is called the individual hearing or the hearing on the merits. During this hearing the respondent is given the opportunity to put on a full case before the immigration judge. The respondent may present witnesses, supporting documentation, and any relevant evidence in his or her defense.
At the end of the individual hearing, the immigration judge decides to either grant relief or deport the respondent. Should the immigration judge order the respondent removed from the United States, he or she may appeal the decision. The respondent has 30 days to appeal the decision. During these 30 days, the respondent may not be removed from the U.S.
Order of Removal: Once the respondent receives a final order or removal ICE officers will remove the individual from the United States. ICE is supposed to remove the individual from the United States within 90 days of the order; however, due to limited resources this time may be delayed.
ICE will generally send individuals not in custody a Form I-166, commonly called a "Bag and Baggage" letter. This letter will provide the individual with the date, time, and location to appear for removal from the United States. It is the individual's responsibility to adhere to the order of removal.
Should the individual fail to appear for removal the individual faces serious immigration consequences, including being subject to ICE apprehension and ineligibility from most forms of immigration benefits.
If I am Facing Deportation/Removal Proceedings, What Options or Defenses Do I Have?
If you have been arrested and are facing removal proceedings by U.S. Customs and Enforcement (ICE), there are various forms of relief the may help you remain in the U.S.
If you are a U.S. Citizen you don't have to worry about being deported because you can't be. Sometimes people are unaware that they are in fact U.S. citizens based on a relationship to a family member. If you are a U.S. citizen you should notify the immigration judge immediately.
One form of relief available to those facing removal proceedings is cancellation of removal. You may be eligible for cancellation of removal if you satisfy the following requirements:
You may be eligible for cancellation of removal even if you never had a green card if:
There are a couple waivers available to those facing removal proceedings. Under the section 212(c) waiver, if you pled guilty to a crime before April 24, 1996, your criminal conviction may be waived. In order to qualify you must satisfy the following:
Another waiver available is the section 212(h) waiver. This waiver excuses you for certain crimes if you can prove that removal from the U.S. would cause extreme hardship to a U.S. citizen or permanent resident spouse, child or parent. Some other forms of relief include asylum, withholding of removal, and Convention against Torture. You may be eligible to apply for asylum if you fear harm in your country because of your race, religion, nationality, actual or suspected political opinion, or membership in a particular social group. Withholding of removal may be available to you if you can show your freedom or life would be threatened due to your race, religion, nationality, political opinion or membership in a particular social group. Finally, you may be eligible for relief under the Convention against Torture if you fear that you will be tortured if you return to your country.
Adjustment of Status is another form of relief available to those who satisfy one of the following:
You should consult with an experienced immigration attorney to determine whether you qualify for relief from deportation.