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Is DACA for You?

Since June 15th 2012, hundreds of Dreamers (or DACA beneficiaries) have walked into immigration law offices int the U.S. and close to half of them actually qualify for better relief than Deferred Action. Keep in mind the following:

  • Lawful permanent residents consult with lawyers not knowing they were in fact, lawful permanent residents.
  • People who would not qualify for deferred action are sometimes eligible for special immigrant juvenile status, and hence, a green card.
  • Victims of serious crimes and persecution would qualify for asylum and withholding in the U.S. or may qualify for U-Visas.
  • A Dreamer may actually be a U.S. citizen because his dad had naturalized when he was a minor - he just did not know that he automatically became a U.S. citizen.
  • Many Dreamers may be eligible for green-cards through non-LPR cancellation of removal in immigration court.
  • Some DACA beneficiaries have a history that may reveal eligibility under 245(i). Being asked the right questions is crucial . . .
  • Some DACA beneficiaries have crimes or convictions on their record. Sometimes, a lawyer or attorney can get you post-conviction relief, and USCIS will may likely honor that.

Attorney-Client Confidentiality: Only lawyers can obtain information safely:

  • Attorney-client privilege protects individuals against subpoena to allow them to disclose sensitive information and get advice. Regardless of what USCIS says about keeping their information private and confidential, ICE will not hesitate to use their information against them if they ever initiate removal proceedings. USCIS, Director Mayorkas, has made it clear that those with potentially negative immigration histories, including fraud and crimes, would be referred to ICE for removal proceedings. This is not the easy, benevolent process that some people are saying that it is.
  • Someone whose case was filed by a notario - even something filed on their behalf by a family member - may contain inaccurate or even fraudulent information that could harm them.
  • Some may have used a false identity, made up a social security number or claimed to be a United States citizen? Someone may have used their cousin's U.S. birth certificate to get an ID or a job or a driver's license? They need a lawyer with the attorney-client confidentiality to discuss this and to protect the information against subpoena.

The process is unforgiving of innocent mistakes - there is no appeal process:

  • Often, in immigration matters, checking the wrong box could result in a denial which can then result in a notice to appear in immigration court proceedings. They all have only one shot at doing this right.

It's not as easy as it may appear:

  • Legal terms like "continuous presence", "unlawful presence", "advance parole", and the definition of a "crime" under the INA requires a formal legal analysis. Local non-profits do not usually have the legal expertise to answer these tough legal immigration questions.
  • If a DREAMer has ever had any contact with law enforcement (even if it never resulted in a conviction), the case should still be screened by a lawyer. A competent immigration lawyer should be able to review your records and determine what's really in there. For example, an incident you thought was resolved without any consequences may actually be a real problem. Also, for example, expungement does not mean they are safe to file. Also, if the judge said you wouldn't have a record because you were a minor, or told you your record would be wiped clean if you kept out of trouble or completed public service hours, that incident might still be used to disqualify you, either as a conviction for immigration purposes or under public safety grounds. Just the suggestion - even without proof - of gang activity, or a history of certain traffic infractions might affect your application. On the other hand, if you think a prior brush with the law means you can't qualify, remember that these requirements are evolving, so it's best to have an immigration attorney evaluate your case. Even if a conviction stands in the way, a lawyer may be able to find a legal basis to reopen that case to obtain post-conviction relief.
  • In someone's history, sometimes an out-of-date address means a notice didn't reach them and their case was referred for a removal/deportation hearing - one that they never knew about and never went to.
  • If they have ever left the U.S., they will want to ask a lawyer whether that departure interrupted their continuous presence (especially if they left because they were granted voluntary departure or ordered removed). And if there were any issues on their return-like being refused entry, caught at the border, or using a fake document-there will be immigration consequences to consider.

Someone who isn't sure how to prove that they were here on June 15, 2012, or isn't sure they can show they have been continuously residing in the U.S. for five years can benefit from a competent immigration lawyer who can help, especially if they think they don't have access to reliable evidence (or maybe don't have all the evidence in their own name).

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