Seven weeks after a new policy went into effect allowing eligible undocumented youth to extend their stay in the United States, attorneys advising the program’s applicants say they have encountered a few gray areas in the rules and uncertainty over the consequences of a possible change in national political leadership.
The program, Deferred Action for Childhood Arrivals, grants “deferred action” to eligible immigrants, allowing them to remain in the U.S. for up to two years and apply for work permits without fear of deportation.
A training session for pro bono attorneys seeking to help undocumented youth extend their stay in the United States was sponsored by the City Bar Justice Center at the bar’s Manhattan headquarters, above. Legal Aid Society volunteers recently gathered at the society’s offices in Brooklyn to help clients apply for the deferred action program, below.
Photos: NYLJ/Rick Kopstein
Since the program was announced in June by the Obama administration, hundreds of New York lawyers have signed on with Legal Aid Society, City Bar Justice Center and other groups to advise young immigrants.
While most of the clients present straightforward applications, lawyers say they have confronted uncertainties in how the government will handle requests from those who have had a youthful offender charge or criminal charges against them dismissed.
“For those who don’t strictly, cleanly meet all the requirements, there is some ambiguity,” said Maria Navarro, a supervising attorney at Legal Aid Society. “We never want to put anyone in a worse position” than they are in, so it would be helpful if the rules were more clear, she said
Attorneys also question the effect on an applicant’s status if there is a change in policy or government in Washington, D.C.
Immigration attorney Jennifer Durkin said those who apply for deferred action after they have been ordered to leave the United States could be at risk if there is a change in policy. “Essentially you’re turning yourself in,” she said.
For youth who have a removal order or multiple interactions with law enforcement in their records, Durkin advises them to delay application until after the election or until test cases have been processed.
Durkin said she goes through a “very detailed pros and cons analysis” with every applicant. “I’m very blunt, personally. I prefer to be realistic,” she said.
From Aug. 15 through Sept. 13, the government received more than 82,000 requests from undocumented immigrants nationwide.
That’s a fraction of the total number of U.S. residents who could be eligible, as many as 1.7 million, according to The Migration Policy Institute. About 30 individuals were granted deferred action in the program’s first month.
Those requesting deferrals must meet seven essential criteria: an immigrant must be under 31 as of June 15, 2012; must have arrived in the United States before reaching a 16th birthday; have continuously resided here since June 15, 2007; have been in the country on June 15, 2012 and at the time of requesting deferred action; have entered without inspection before June 15 or had a lawful immigration status expired as of June 15.
They also must be in school, have graduated or received a certificate of completion from high school or be an honorably discharged veteran; and have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors and not pose a threat to national security or public safety.
The government has described deferred action as a “discretionary determination to defer removal action of an individual as an act of prosecutorial discretion.”
“It’s not a right you’re entitled to,” said immigration attorney David Katona, a partner at Katona & Mir. One big question, he said, is how will the government exercise its discretion.
For instance, youthful offender adjudications are not considered convictions in New York, but the government may consider them in a deferred action request.
According to the government’s written guidance, expunged convictions and juvenile convictions will not automatically disqualify an applicant, and requests “will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted.”
Gang membership presents another issue, as it could be considered a public safety threat. But the government has not clarified whether it means current or past gang membership.
“You may have somebody who realized that’s not what they want their life to be and they have moved on and led a productive life,” but that person might face a hurdle, said Barbara Camacho, a City Bar Justice Center fellow supported by Fragomen, Del Rey, Bernsen & Loewy.
The Homeland Security Department has said it has discretion under “exceptional circumstances” to accept a request. “The problem is there’s no guidance on how to define ‘exceptional circumstances,’” Camacho said. “We’re flying blind.”
The burden is always on the applicant for proof of exceptional circumstances, she said.
If applicants admit to being arrested for, charged with or convicted of a felony or misdemeanor, they must include copies of all arrest records, charging documents, dispositions and sentencing records.
Immigration attorneys say they don’t know if arrests are being considered, even if charges were dropped or lowered to a less serious offense.
Navarro said it’s possible that an applicant could be called in to discuss a serious charge on an arrest report, even it was eventually dismissed.
Legal services providers said they try to beef up an applicant’s file by providing positive information, such as volunteer work, extracurricular activities and education. “Your goal when you have that situation is to try to show a complete person,” said Camacho.
The government in its FAQs says information provided by applicants is protected from disclosure to Immigration and Customs Enforcement and U.S. Customs and Border protection unless the case involves a criminal offense, fraud or threat to national security or public safety.
A lawyer at the City Bar Justice Center training last month asked if Republican presidential candidate Mitt Romney wins the election in November and finds the policy unconstitutional, “these people will now be above the radar and subject to deportation. Is that correct?”
Camacho responded at the training session that they could theoretically be subject to deportation and that it depends on what the government does with the information. “The FAQs indicate they will not be sharing that information for the purposes of enforcement, but it is a risk,” she said.
Romney told the Denver Post this week that he wouldn’t invalidate deferred action for those who already have it. But he said that before their deferral expires, “we will have the full immigration reform plan that I’ve proposed.”
And the rules of the existing program are being challenged from within the federal government. In August, 10 U.S. Customs and Immigration Enforcement agents sued Homeland Security Department Secretary Janet Napolitano and the head of ICE, claiming the directive to refrain from pursuing individuals who meet the deferred action guidelines is unconstitutional. The case, Crane v. Napolitano, 3:12-cv-03247-O, was filed in the Northern District of Texas.
Despite the uncertainties, there are undocumented youth who are forging ahead.
Carolina, 23, said after consulting with attorneys at the Legal Aid office in Brooklyn, she decided to apply. Carolina, who came to the United States from Costa Rica and is now a student at Hunter College with a translation major said she would like to remain in the United States so she can work and pay tuition during graduate school.
“My life is here now and I grew up here. This is what is familiar for me,” she said. “I’ll take the risk. I’m ready for it. …Even if it’s only for two years, it’s better than nothing.”
Applicants must submit three forms to the government; a worksheet describing their income, expenses and assets; supporting documentation and a $465 money order. Applicants will be fingerprinted and immigration services will conduct a background check. The process can take from four to six weeks.
If applications are denied, there is no appeal process.
Navarro, during a training session, told volunteer lawyers they need to make clear that applicants must tell the truth of their history, as any omission can appear as a lie on their application. Clients must understand the consequences of lying, she said, because if they do, they could be considered a priority for removal.
Government officials have said that with funds generated by a filing fees, they are hiring more staff to process the applications.
@|Christine Simmons can be contacted at firstname.lastname@example.org.