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Thursday, July 26, 2012

Do I need an attorney to help me file for Deferred Action under President Obama's June 15, 2012 announcement?

(Updated 3:00 p.m. pst.  Thanks to the ever watchful eye of Mo Goldman who spotted a couple of factual errors.  Thanks Mo and keep up the good fight!)

The simple answer is Yes!  The more complicated reason is: why?

On June 15, 2012 President Obama made his historic announcement that certain young people who came to the U.S. (generally referred to as" DREAMers") can apply for deferred action for a 2 year period and obtain legal work authorization.  To qualify the applicant must:
  1. Have come to the United States under the age of sixteen;
  2. Have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;
  3. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Not be above the age of thirty.

Following the announcement, there was a great deal of speculation and confusion about what the application would look like, how difficult or complex it will be to complete, and whether or not an applicant would need legal representation to successfully apply.  These questions proved impossible to answer as very little information was provided by the Department of Homeland Security, who merely indicated that they would begin processing applications on August 15, 2012.  The lack of information, however, didn't stop enterprising individuals--both attorneys and non-attorneys-- from advertising to potential applicants and even to accept money to prepare forms that didn't even exist, making claims about "the new law", "being first in line", etc.  The sensible and prudent attorney was advising potential applicants to hold off until more details emerged and counseled them to begin to assemble the paperwork that would support their eligibility. 

However, in recent days more information is beginning to come to the surface and with only a couple of weeks until the August 15th date, things are getting a little clearer. 

Filing process.  While the actual Form itself is not yet published, the information necessary to complete the form can be deduced from the initial June 15th memo.  Examples of these documents can be found at our sister site: www.dhsdeferredaction.com.  There already exist several forms that ask for the information, including the G-325, I-821, and the I-765.  However, since the application would seem to be more document driven than simply information driven, it seems certain that any application would must include a significant amount of documentary evidence.  According to a USCIS source, the applications would be sent to a central lockbox (likely Phoenix or Chicago) before being routed to a USCIS service center.  It is estimated that between 800,000 and 1.4 million (and growing) applications will be filed.  It would take 2-3 months for receipt notices to be generated and biometric notices would following in another 1-2 months.  After that, the processing time for the DA form would be anybody's guess and interviews may be scheduled in the local district office if further information becomes necessary (particular criminal issues).  Following that the employment authorization would be processed.  According to the USCIS source, it is likely that RFE's (requests for evidence) would be issued in most cases.   It is important to understand that if a case is denied, THERE IS NO APPEAL!!!

Filing fees.  In keeping with DHS policy that the costs of the application process be covered by the filing fees so as not to burden U.S. taxpayers, fees will be charged.  The biometrics fee is currently $85.  The employment authorization fee is $380.  Speculation is that because there is insufficient time to conduct a fee impact study there will be no further intial fee beyond the $465.  A story in U.S. News and World Report (http://www.usnews.com/news/us/articles/2012/07/24/dhs-deportation-proposal-could-cost-585-million) cites an internal DHS document that mentions a $465 paperwork fee, so it's looking more and more like the fee would be $465.

Use of documents for enforcement purposes.  Here is a potential problem.  This program has been identified as a DHS program, not a USCIS or ICE program.  In a recent stakeholder meeting one USCIS official indicated that any information filed under this program becomes DHS property.  This is unlike the Legalization program of the 1980's where there were specific shields in place to protect against using the information for enforcement.  This is clearly not the case here!  An example of how this could become a problem is as simple as an applicant indicating that they worked with a social security number (which may have even been their own).  On inquiry the person discloses that they told their employer in the I-9 process that they were a U.S. citizen, or provided someone else's U.S. birth certificate.  Under current law, the immigration consequences could be catastrophic.  Of possibly more concern is disclosing the immigration status and identifying information including addresses of parents.  It is certain that they CAN use this information, it is unclear if they would, or under what circumstances.  Conceivable if there are outstanding removal orders it may be of more interest to ICE.

The need for an attorney.  It is the practice of this attorney and most ethical ones that I am familiar with to charge for consultations.  That is because then we can use that time to honestly and objectively advise a client as to their particular problem without having to worry about how we can pay our own obligations at the end of the day.  I have always believed that a lawyer who provides free consultation either has a large trust fund behind him/her or will use that time to explain why the potential client needs their services (whether they really do or not).  I will frequently tell people that their case is straightforward enough that if everything they have told me is the complete truth, they probably won't need an attorney because after having represented thousands of clients over 25 years, I have a pretty good idea what makes a clean case.

One factor I consider in advising whether or not a client can self-represent is how difficult it is to correct a later problem.  Because in most applications there is an appeal process, many if not most problems can be fixed. Because in these cases, there will be no appeal mechanism, the application must be as complete and correct as possible.  Yet the application should be careful not to reveal too much information that later may be used in enforcement efforts.

In additional to some complex filing procedures mentioned above, there is still so much to be decided, including what exactly will constitute a "significant misdemeanor offense" or a "threat to national security or public safety" (which will make an applicant ineligible for deferred action), applicants need to have any criminal activity carefully reviewed in light of current immigration laws and standards, not some vague community standard or someone's reasonable hunch. The Department of Homeland Security is notorious for their expansive definitions of criminal behavior, including recently finding that tattoos make a person a threat to public safety because they may look like gang tattoos.

No one, and I mean no one, can say what will happen to this program in the future.  DHS has repeatedly said that deferred action is not a "benefit" meaning to me that even if an individual has been granted deferred action, they could still take it away during or after the two years.   DHS refuses to indicate whether or not a denied or expired applicant will be placed into removal proceedings, instead they simply refer to a series of confusing and self-conflicting memoranda on prosecutorial discretion which even they privately admit is open to wide interpretation.  

One thing is certain:  the information provided incident to this application will be digitalized and then becomes available not only to USCIS, but also to ICE and CBP.  Whatever a person tells DHS will be used for whatever purposes they deem proper, including enforcement. This warning is not meant to discourage applicants from applying, but rather to exercise extreme caution in providing evidence and information.  Extreme caution is not exercised by guessing, or by consulting a notario, a personal injury attorney, a family friend, a consulate, or even a community activist.  It is not enough to be well-intended!

The future well being of an applicant and possibly that of his family necessitates that the applicant consult with and retain the services of an experienced immigration attorney.  It should happen now, even before the August 15th acceptance date because there will be a rush of filing and the later a case gets filed, the later it will be adjudicated.  Attorneys will tend to charge whatever the market will bear.  Some attorneys are charging hourly rates, others are charging a minimum initial retainer to consult with and assemble documents with the understanding that more money may be required later, depending on what the final process looks like, or if there is an interview.  Still others are quoting flat fees for the entire process (which is difficult if you don't know what that process is).  Lawyers (unlike notarios or immigration consultants) in most jurisdictions are subject to regulation and cannot charge more than can be justified by the time and complexity involved in the case.

In closing, in this author's opinion, an applicant should quickly obtain the services of a competent, experienced attorney.  At a minimum, the attorney should be a member of AILA (the American Immigration Lawyers Association), and should be open about the length of time in immigration practice and the numbers of cases they have processed.  Services such as www.AVVO.com can be helpful tools, but like everything else in life, look before you leap.  Google the attorney and find out as much as you can.  But in the end and applicant will not be sorry if they get representation to help with this important step in their life.  Good luck.





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