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Helen Parsonage, Partner, Elliott, Pishko & Morgan, PA Margaret Taylor, Wake Forest University School of Law.

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Presentation on theme: "Helen Parsonage, Partner, Elliott, Pishko & Morgan, PA Margaret Taylor, Wake Forest University School of Law."— Presentation transcript:

1 Helen Parsonage, Partner, Elliott, Pishko & Morgan, PA Margaret Taylor, Wake Forest University School of Law

2  It’s a new program: it provides a limited form of relief (“deferred action status”) to qualifying individuals who were brought into the country as children, and have no route to lawful status (“DREAMers”)  It’s a large program: an estimated 1.7 million people could qualify nationwide; over 50,000 in North Carolina; 3,000 people eligible to apply now in our local congressional districts (5 th and 12 th)  Potential applicants need assistance—and need to be protected from unlicensed “notarios”

3  Individual attorneys and nonprofits need help with pro bono DACA events  They also need help with individual cases, which they have taken on a pro bono or “low bono” basis  We are planning a Winston-Salem DACA pro bono event: Saturday, November 10,  Law student volunteers will play a critical role interviewing applicants, reviewing documents and draft applications, and flagging issues for the consulting attorney  If you are bilingual: PLEASE indicate this on the sign in sheet for this training

4  Failure of DREAM Act  Effect of Secured Communities and increased deportations  Efforts by DREAMers and advocacy community for executive fix, which led to…

5  DACA is not a statute, regulation, or an Executive Order. You’ll find the criteria and procedures…on the USCIS website:  Announced June 15, 2012; application procedures and forms posted August 15,  Announcement by DHS Secretary Janet Napolitano, invoking administrative discretion to “defer” deportation  Not a new mechanism: John Lennon  Allows recipient (who is not otherwise in lawful status) to remain in U.S. for a period of time authorized by DHS  Eligible to apply for work authorization  May be eligible for driver’s license  Is an unreviewable discretionary determination: USCIS considers each case on a “totality of circumstances” standard.

6 Deferred Action is a term that describes a long-standing policy of DHS. In deferred action, the agency determines that an applicant’s deportation is not a priority and therefore defers, or postpones, any action in the applicant’s case. Benefits 1.Temporary Relief from Removal 2.Temporary Employment Authorization; will be able to receive a valid SS#. 3.May be extended beyond initial 2 years 4.Presence during term of deferred action can help prevent accrual of unlawful presence 5.May travel with special “Advanced Parole” from USCIS Drawbacks 1.Temporary Relief 2.Must be renewed every two years 3.Does NOT confer immigration status 4.No benefits for immediate family 5.Does NOT cure prior unlawful presence 6.Individual is now “known” to DHS. Law students cannot advise on whether the applicant qualifies or should apply. Only the applicant can decide, after consultation with a licensed attorney.

7  Permanent or Temporary residence  A path to permanent residence or citizenship  No eligibility for federal loans, grants, medical programs

8  Came to the U.S. before reaching 16 th birthday  Under the age of 31 as of June 15, 2012  Continuously resided in the U.S. since June 15, 2007 and up to present time  Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012  At least 15 years of age at the time of filing  except for individuals in removal proceedings or whose case was terminated who may file before age 15  Physically present in the U.S on June 15, 2012, and at the time of making request for consideration of deferred action with USCIS

9  “Currently in school”—elementary, middle, high school.  Have graduated or obtained certificate of completion from high school  Have obtained GED certification  Currently enrolled in certain job training or educational programs  Honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.

10  “Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security is public safety.” Felony conviction  Federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.  One felony conviction is a disqualification

11  Significant Misdemeanor—a new term not defined elsewhere in immigration law. The USCIS guidelines say:  Must be a misdemeanor as defined by federal law (maximum term of imprisonment is one year or less but greater than five days) that meets one of the following criteria:  Domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence, regardless of sentence imposed  Any offense for which applicant was sentenced to time in custody of more than 90 days.  Does not include a suspended sentence

12  Three or more other misdemeanors  Again must be a misdemeanor as defined in federal law: maximum term of imprisonment is one year or less but greater than five days.  This eliminates most traffic violations, driving without a license except for drugs and alcohol  Juvenile adjudications will be reviewed on case by case basis.  BUT “your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.”  ALL CASES WITH CRIMINAL HISTORY GO DIRECTLY TO LICENSED ATTORNEYS

13 “If the background check or other information uncovered during the review of your request…indicates that your presence in the US threatens public safety or national security, you will not be able to receive consideration…[unless DHS determines there are exceptional circumstances] “Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.”

14  Brief, casual, innocent departures before August 15, 2012 will not affect DACA eligibility  Not because of removal order or voluntary departure.  Not to participate in any criminal activity  Guidelines do not set out a maximum amount of time for trip  In other immigration contexts, 90 day maximum  I-821D elicits information about departures from the U.S.  Travel outside the U.S. after August 15, 2012, whether before application was filed or while under consideration, will disqualify an applicant.  If application is approved, travel outside the U.S. only if DACA recipient applies (and pays $360 fee) and receives a grant of advance parole.

15  Application should include evidence of nature and length of trip:  Length of trip: Bus/plane tickets; Mexican documents (if trip to Mexico); Passport stamp; Affidavits  Purpose of trip: Wedding or death announcement, medical record; family photos  FLAG ALL DEPARTURE ISSUES FOR REVIEWING ATTORNEY.

16  Even if a departure does not render an applicant ineligible for DACA, it could be problematic if, in the future, they have a route to authorized status.  For an applicant for admission (not DACA), accumulation of unauthorized presence plus departure, or a misrepresentation made to secure re-admission on a visa, could render the applicant inadmissible.  That’s another reason to flag departures for a reviewing attorney.

17  Passport  Birth Certificate with photo identification  Any U.S. government immigration or other document bearing name and photo  Mexican Cedula  With birth certificate

18  School records (transcripts, report card, etc) from the school currently attending  U.S. high school diploma or certificate of completion  U.S. GED certificate  College transcripts or college diploma  Proof of enrollment in a vocational/employment training program, other educational program or GED program  FLAG ALL CASES OF STUDENTS IN VOCATIONAL, ESL, JOB TRAINING, GED OR ALTERNATIVE PROGRAMS FOR REVIEWING ATTORNEY

19  Honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Guard  Form DD-214, Certificate of Release or Discharge from Active Duty  NGB Form 22, National Guard Report of Separation and Record of Service  Military personnel records  Military health records  Since individuals not in authorized immigration status are not eligible to enlist, there are few people who will qualify under this category.  FLAG ANY MILITARY SERVICE FOR REVIEWING ATTORNEY.  They may have better immigration options, including naturalization.

20 Must submit documents to establish: Entry before 16 th birthday Continuous residency since June 15, 2007 Presence in U.S. on June 15, 2012  Evidence to meet these three requirements overlaps

21 Establishing Documentation Came to U.S. before 16 th Birthday Passport + Admission Stamp Form I-94/I- 95/I-94W School Records INS doc. With date of entry Travel Records Hospital or Medical Records; vaccinations Proof of Presence on June 15, 2012 Rent receipts or utility bills Employment records (W-2 etc) School Records Military Records But needs attorney review Official Records from Religious Entity Copies of Money order receipts; bank statements, ATM receipts Resided Continuously since June 15, 2007 Passport Entries But be wary of departures Birth Cert. of children born in U.S. Dated Bank Records Wire transfer receipts Rental receipts Auto license receipt; registration Deeds, mortgages, tax receipts, insurance policies

22  Document to cover each quarter of last five years is preferable  DHS has recognized that student may not have documents from summer months  Many documents will cover a large period of time  School transcripts and records- best evidence  Rent receipts  Telephone bills  Medical records  Vaccination records  Dated bank transactions  Affidavits  Not favored by USCIS  Can only be used for gaps in documentation of five year continuous residence requirement or to show purpose/length of a departure  Must have two affidavits

23  Any documentation with name and date  Phone records from the month  Bank ATM transaction  Facebook posts with name and place  If no documents from June 15, documents for month of June and July.  For persons who entered with a visa, must show that visa expired before June 15, 2012  Form I-94/I-95/I-94W with authorized stay expiration date  Final order of exclusion, deportation, or removal before June 15, 2012  Notice to Appear to being removal proceedings

24  Form I-821D- DACA application  Form I-765- Employment authorization application  Form I-765WS- proof of economic need  G-1145 if applicant wants notifications  Filing fee of $ money order or cashier’s check  Two passport photos  Supporting documentation to meet DACA requirements

25  Expenses must be greater than income  Include a short sentence about need to work:  “ I need to work to save money for college” or  “Even though I live with my parents, they don’t make enough money to support me.”  Not clear whether USCIS will require supporting proof

26  Under 18 years of age, homeless, in foster care or lacking any parental or other familial support, and below 150% of the poverty level.  Suffer from a serious, chronic disability, income is less than 150% of the poverty level.  $25,000 or more in unreimbursed medical debt in the past 12 months for yourself or an immediate family member, incomes less than 150% of poverty level.

27  Applicant will receive a receipt notice from USCIS  If selected on I-821D, will receive notifications about case  Will be notified of biometrics appointment  Important to advise applicants of need to attend appointment  Advise USCIS of any change of address AR-11 at uscis.gov  No information at this time regarding how long process will take  When approved, will receive approval notice and employment authorization document  With these documents can obtain valid social security number and (probably) NC driver’s license

28  All documents in Spanish must be translated with a translation certification  They do not need to be notarized  Copies of documents, not originals, should be filed.  Affidavits, although not the preferable proof, do not need be notarized, although they can be. A passport is not required if the applicant has another official document/documents with a photo, for example, a birth certificate and a school I.D.

29  If applicant doesn’t know exact day and month of all addresses, leave day blank, enter month and year and include “approximate dates”  If a question does not apply, leave blank  Compare address on applicant’s documents with the addresses she has provided  If document appears suspect, flag it for reviewing attorney

30  DHS has clarified that only valid social security numbers must be reported on the application forms.

31  Will my undocumented parents be at risk if I file?  No, USCIS will only provide information to ICE in the case of fraud or because your application fits one of its enforcements priorities (crimes, gangs, national security, etc.)—although the guarantee of confidentiality can be withdrawn at any time.  I have a pending application already filed, for example, based on my mother’s citizenship. Does that matter?  DACA will not affect the application but it will not accelerate the process. You can filed for DACA and continue with any other application

32  If I don’t have documents in my name to show I came to the U.S. before age 16, can I use documents with my parents’ names?  School records and other documents in your name with a date and address in the U.S. are the best proof.  However, if your birth certificate shows your parents name, you can use documents in your parents names. We suggest you include a statement that you lived with your parents during the period of time shown on the document.

33  Do I have to submit documents for the summer months when school was out?  If you have continuous school records, we do not believe that USCIS will ask for proof that you were here during the summer. However, if you have documents from the summer months, you should include them.  The name on my birth certificate is Daniel Garcia- Gonzalez. My school records are listed under Daniel Gonzalez. Will this be a problem?  No. USCIS is accustomed to the use of two surnames in Latin America

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63 Make sure that you have signed in at the training. Ama Frimpong will send notify volunteers when nonprofits identify the times when they are doing DACA intake and processing, and need law student help. Others hosting DACA events have expressed desire for law student volunteers. 2L and 3L students should Professor Taylor to volunteer to help individual attorneys with their pro bono DACA caseload.

64  Best source to stay up to date on DACA developments (good to brush up before you volunteer!): facts/deferred-action-childhood-arrivals- qa-guide-updated facts/deferred-action-childhood-arrivals- qa-guide-updated  It provides the link to the USCIS website, and practice advisories on the topic, which is very helpful to review

65  It will vary according to your placement and the event.  A private attorney will need help with client follow up, gathering additional documents, form completion, all under attorney supervision.  At a DACA event:  Intake: explain the limited representation agreement and review for issues that require immediate attorney input  Review of documents and forms with potential applicants:  Confidentiality and important of truthful information  Establishing trust and rapport  Dig deep for any criminal issues or other problems  Special role for bilingual volunteers.  Any concerns are flagged for reviewing attorney

66  Understand the difficult trade off: in a perfect world, every applicant could secure individual representation. At DACA group processing events, applicants benefit from a brief consultation with an attorney, but are filing their own application.  Applicants will sign a limited representation agreement  For the Winston-Salem DACA event: our potential applicants will attend an orientation event hosted by a community partner, where they will learn about DACA, and receive a list of documents to bring to the event.  Law student volunteers for the Winston Salem event will have a brief orientation meeting before the event (time to be determined) to instruct you about our overall plan and the logistics of dealing with so many potential applicants.

67  Well-intentioned volunteers can unintentionally provide inaccurate advice on immigration law or procedures that ends up harming the person they are trying to help.  Law student volunteers can explain DACA requirements, review the application and supporting documents with potential applicants, and flag any issues for the reviewing attorney.  Law student volunteers must not advise on whether someone qualifies or should file.  The reviewing attorney will provide legal advice; the potential applicant will decide whether to file.  Translation should be literal (word for word); translators must be careful not to paraphrase or elaborate on the words on the forms, or the words of the potential applicants or attorneys.


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