Deferred Action for Childhood Arrivals PowerPoint Slides

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Transcript Deferred Action for Childhood Arrivals PowerPoint Slides

NOVEMBER 14, 2012
Van Doan, Esq.
Paula Fitzgerald, Esq.
Sandra Grossman, Esq.
Donald Mooers, Esq.
Eligibility for DACA
1. Were under the age of 31 as of June 15, 2012;
2. Came to the US before reaching their 16th birthday;
3. Have continuously resided in the US since June 15,
2007, up to the present time;
4. Were physically present in the US on June 15, 2012,
and at the time the application is filed;
5. Entered without inspection before June 15, 2012, or
their lawful immigration status expired as of June 15,
Eligibility for DACA
6. Are currently in school, have graduated or obtained
a certificate of completion from high school, have
obtained a GED, or are an honorably discharged
veteran of the Coast Guard or Armed Forces; and
7. Have not been convicted of a felony, significant
misdemeanor, three or more other misdemeanors,
and do not otherwise pose a threat to national
security or public safety.
Age Requirements
If never been in removal proceedings or proceedings
terminated then must be at least 15 years old
If in removal proceedings, has a final removal order, or a
voluntary departure order, and are not in immigration
detention, then can apply even if under age 15
Do not qualify if over 31 years as of June 15, 2012
“Continuously Resided”
A brief, casual, and innocent absence from the US will
not interrupt continuous residence
Brief, casual, and innocent absence:
◦ short and reasonably calculated to accomplish the
purpose for the absence;
◦ not because of an order of exclusion, deportation,
removal or voluntary departure
◦ the purpose of the absence was not contrary to law
“Currently in School”
To be considered “currently in school” applicant must
be enrolled in school (on the date you apply) in:
◦ a public or private elementary, junior high, middle
school, high school, or secondary school;
◦ an educational, literacy, or career training program
(including vocational training) that is designed to lead
to placement in postsecondary education, job training,
or employment and where you are working towards
such placement; or
◦ an education program assisting students to obtain a
regular high school diploma or its recognized
equivalent (i.e. GED program)
Evidentiary Requirements for DACA
Circumstantial Evidence
CANNOT be used to:
• Establish educational requirements
• Prove military service
• Prove applicant’s age on June 15, 2012
In the absence of other documentation, circumstantial
evidence MAY be used to prove:
Physical presence on June 15, 2012
Arrival in the U.S. before turning 16
Fill in gaps in direct evidence demonstrating 5-year continuous residence
Show departures during the 5 years were “brief, casual, and innocent”
Law Office of Thanh Van T. Doan, LLC © 2012
Evidentiary Requirements for DACA
CANNOT be used to:
Establish educational requirements
Prove military service
Physical presence on June 15, 2012
Arrival in the U.S. before turning 16
Under age 31
Criminal history
MAY be used to:
• Fill in gaps to prove 5-year continuous residence
• Show departures during the 5 years were “brief, casual, and
**Must submit 2 or more affidavits from other people with personal
knowledge of relevant events and circumstances
Law Office of Thanh Van T. Doan, LLC © 2012
Evidentiary Requirements for DACA
The Devil is in the Details
INSPECT documents:
• Employment documents – stolen SSN, claim to citizenship,
identity fraud?
• Financial documents – questionable purchases?
• School documents – disciplinary issues, counselor’s notes,
gang activity, federal financial aid i.e. claim to citizenship?
• Previous applications for immigration benefits – inconsistent
Law Office of Thanh Van T. Doan, LLC © 2012
Evidentiary Requirements for DACA
Be Resourceful!!
Other sources/forms of evidence:
• Migrant Student Information Exchange (MSIX)
• State agencies – DMV/MVA
• District court – moving violations
• Extracurricular activities
Law Office of Thanh Van T. Doan, LLC © 2012
What is a FELONY?
A federal, state, or local offense that is
punishable by a potential sentence to
imprisonment of more than one year.
 Note that sentences for the same crime
vary state by state.
 The actual sentence imposed is irrelevant
Grossman Law, LLC
Federal, state, or local criminal offense that is:
◦ Punishable by more than five days but less than one year, AND
◦ Involves the following characteristics:
Violence, threats or assault, including domestic violence;
Sex offenses: sexual abuse or exploitation;
Property offenses: burglary, or fraud;
DUIs: Driving under the influence of alcohol or drugs;
Obstruction of justice, bribery, or unlawful flight from arrest,
prosecution or the scene of an accident;
 Unlawful possession or use of a firearm;
 Drug distribution or trafficking;
 *possession will be a negative discretionary factor but no longer a
disqualifying crime
Grossman Law, LLC
Significant misdemeanor
If not one of listed offenses, an offense for which
the individual was sentenced to time in
custody for more than 90 days.
not include suspended sentence.
retains the discretion to determine that an individual
does not warrant DA on the basis of a single criminal offense
for which the individual was sentenced to time in custody of 90
days or less.”
Grossman Law, LLC
•Barred from DA if convicted of three or more “non-significant
misdemeanors” which includes any misdemeanor punishable by
imprisonment of more than five days and less than a year that is not
identified as “significant misdemeanor”
only be non-significant if the person received a sentence of
90 days or less.
•Persons with three or more non-significant misdemeanors not
occurring on the same day and not arising from the same act or
scheme of conduct, are ineligible for DA.
•A minor traffic offense will not be considered a misdemeanor for
purposes of this process
Grossman Law, LLC
Crim. Convictions - Considerations
are barred for any of the above criminal
convictions unless “DHS determines there are
exceptional circumstances.”
•Obtain a copy of your client’s entire criminal history:
oFBI Report
oCertified Disposition
oConsider lawyer
convictions—USCIS has only said that a juvenile
conviction “will not automatically disqualify you”
•They will use a totality of the circumstances approach
•Same with Expunged convictions
Grossman Law, LLC
Criminal issues continued…
National security or public safety threat
includes: gang membership, participation
in criminal activities, or participation in
activities that threaten the U.S.
Grossman Law, LLC
Scenario 1:
Oscar, a 16 year old boy from El Salvador, comes to
your office asking to apply for DACA. He tells you
that he entered the United States at age 11 by
crossing the border with a coyote in April 2007. He
is currently in his sophomore year of high school
and has no criminal history. When you ask him
where his parents are, he tells you that his mother is
in El Salvador but that he doesn’t know who his
father is.
Scenario 2:
Sunny was 5 years old when she entered the United States with her parents on a
visitor’s visa in 1989. In 1998, Sunny and her sister report to the school counselor
that their mother was verbally and physically abusive. Child protective services
(CPS) was called and Sunny and her sister are placed in foster care. Sunny’s mother
is charged with child abuse, but the prosecutor chooses not to pursue the case.
After many attempts to reunify Sunny and her sister with the mother, the Court
concludes that it is not in the children’s best interest to be reunited with either
parent; it is not in the children’s best interest to return to their native country; and
the children would be placed in long-term foster care under the Court’s jurisdiction.
Based on these findings, an application for Special Immigrant Juvenile Status (SIJS)
is filed in 2002, but is not accepted by USCIS because the check issued by social
services had bounced.
After graduating from the Best High School, Columbia, Maryland, Sunny has
dreams of attending nursing school, but doesn’t have the money. The school
counselor tells her that she can get financial aid if she can straighten out her
immigration status. Sunny makes an InfoPass appointment where the friendly agent
assures her that the folks at ICE will be able to help her. ICE serves Sunny with an
NTA. What are her options?
Scenario 3:
Maria and her mother EWI’d from Honduras when Maria was 5 years old. They
have lived in the US for the last 15 years. They left their home country in part
because Maria's father was abusing her and her mother. Maria's mother tried
resolving the problem with the local police but was unsuccessful. Once in the U.S.,
the two women tried to start a new life. Maria's mom works at least two jobs but
hasn't been around much to take care of her daughter. Maria got into some bad
habits in high school because she was hanging out with the wrong crowd. She was
cited for a small amount of marijuana when she was 15 but placed into an
alternative sentencing program through “Teen Court” in Montgomery County. She
paid a small fee and performed community service, and as a result she was never
prosecuted in regular court.
When she turned 18, she was arrested two more times:
•Once for shoplifting which carries a max sentence of one year. She was given a 6
month sentence with all of it suspended.
•The other arrest was for marijuana possession. She doesn't know/remember the
Is she eligible for DACA? If not, what else might be option for her?
Scenario 4:
Lilian, a 27 year old woman from Honduras, comes in for a
consultation. She believes that she qualifies for DACA. She
entered the United States without inspection with her mother
in 1995. She graduated from high school in the United States
and has no criminal history. She is married to a man named
Mario, who is a naturalized US Citizen, but he has refused to
petition for her. She discloses that Mario has hit her a few times
and that he often calls her names and tries to control her. She
has never reported the abuse to the police.