DREAMers: clarifications on eligibility and important deferred action data

Yesterday, I reported that the Department of Homeland Security (DHS) authorized the implementation of the deferred action program for hundreds of thousands of DREAMers. Under this directive, certain young people will not be deportable from the country for a period of two years, subject to renewal, and will receive employment authorization if they can demonstrate "an economic necessity for employment."

The steps to apply for this benefit are expected to be announced within 60 days. In the meantime, do not send any application to the government because it will be rejected.

It is important to note that NOT all young people who entered the U.S. undocumented as minors will be eligible. Therefore, it is imperative that they consult with an immigration attorney before requesting deferred action to be sure that they meet all the requirements.

Under this directive, youth must demonstrate that they meet the following criteria to be eligible:

1) having arrived in the United States under 16 years of age;

2) have lived continuously in the United States for at least five years prior to June 15, 2012 and be currently present in the country;

3) is currently attending school, has graduated from high school, has obtained a general education development (GED) certificate, or is a veteran who has been honorably discharged from the Coast Guard or U.S. Armed Forces;

4) has not been convicted of a felony, significant misdemeanor, multiple misdemeanors, or poses a threat to national security or public safety;

5) is not older than 30 years of age.

Who may request deferred action:

1. Persons with a final order of deportation

2. Persons whose cases in the past were administratively closed or terminated by an immigration judge.

3. Individuals who in the past opted not to accept an offer to finalize or administratively close their cases.

4. Individuals who in the past have been denied a request to administratively close or terminate their immigration cases.

Other important facts to know:

If a person is about to be removed from the country and believes he or she is eligible for deferred action, he or she should immediately contact the DHS Law Enforcement Support Center at 1-855-448-6903. The office is open 24 hours a day, every day of the week.

In addition, they can call the Office of the Public Advocate at U.S. Immigration and Customs Enforcement (ICE) for assistance. Their phone number is 1-888-351-4024 and they are open Monday through Friday from 9:00 am to 5:00 pm. Alternatively, you can email them at EROPublicAdvocate@ice.dhs.gov.

ICE and U.S. Customs and Border Protection (CBP) should not detain people eligible for deferred action or place them in removal proceedings. If you believe that ICE or CBP has violated this guideline, please call the Law Enforcement Center and the Office of the Public Defender.

All applicants will be required to provide fingerprints for a criminal background check. If you have a criminal record, consult with an immigration attorney before beginning the process.

4. All applicants for deferred action must submit evidence demonstrating their eligibility for the program. Examples of evidence that may be submitted with the application include:

- financial, medical, school, or employment or military service records

- diplomas, GED certificate, transcripts, or transcripts of courses passed

- official separation report, military service records, and health records associated with military service

5. A person who knowingly makes a false representation to ICE or U.S. Citizenship and Immigration Services (USCIS), or fails to disclose relevant facts in order to receive deferred action or employment authorization under this new process could be subject to criminal charges and be considered a high priority case, resulting in possible deportation from the United States.

6. According to DHS, a felony is a federal, state, or local criminal offense that carries a prison sentence of one year or more.

7. According to DHS, a significant misdemeanor offense is a federal, state, or local criminal offense that carries a jail sentence of less than one year or no jail that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; robbery, theft, fraud; driving while intoxicated or drugged; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession of firearms; drug distribution or trafficking; or unlawful possession of drugs.

8. A person who has not been found guilty of a non-significant misdemeanor, but has been found guilty of three or more misdemeanors unrelated to the same act, omission, or scheme of conduct, will not be considered eligible for deferred action.

9. Examples of acts that pose a threat to national security or public safety are membership in gangs or gangs, participation in criminal activity, or participation in activities that threaten the United States.

10. Persons whose request for deferred action is denied may still be considered for the exercise of prosecutorial discretion on the basis of the provisions of the Memorandum of the Procedural Discretion Exercise published by ICE in June 2011.

11. Individuals will not have the opportunity to appeal ICE or USCIS decisions based on the exercise of prosecutorial discretion, including deferred action. ICE and USCIS will develop protocols for supervisory review of these cases as part of the implementation plan for this new program.

12. Immediate family members, including dependents of persons receiving deferred action may not obtain deferred action unless they independently also meet the program's eligibility requirements.

13. If the request for deferred action is denied, USCIS reserves the right to refer the case to ICE for deportation. Generally, USCIS will refer individuals to ICE if they have a criminal record or are determined to have committed fraud.

14. USCIS has not yet said whether people who receive deferred action will be able to travel outside the country with an Advance Parole.

15. USCIS has not announced the cost to request deferred action. For those who plan to request a work permit, the current processing fee is $380. It remains to be seen if USCIS will allow for a fee waiver for those who cannot afford the processing fee.

16. Requests for deferred action will be decided on a case-by-case basis. DHS makes no guarantee that requests will be granted.

17. Deferred action is not permanent residency nor does it lead to citizenship. Only Congress can grant these rights.

18. The deferred action program may be terminated at any time at the discretion of DHS or renewed by the agency.