A HYPOTHETICAL CASE STUDY

Let's take the example of a 35 year old Dreamer, #DACA expiring Mar 2018. He came to US with his parents at age 4. He has no criminal record, and has never left the US. He goes to see an immigration lawyer his family has been working with for years.

First: Our Dreamer is privileged, because many cannot afford counsel. Though they're maligned as "lawbreakers," the government doesn't provide them lawyers.

OK. Let's figure out how to help our Dreamer!


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"Leave and come back legally."

Leaving will trigger a 10 year bar to reentry. A waiver (forgiveness) exists, but our Dreamer doesn't qualify. He has no parents or spouse who are US citizens or green card holders. An uncle is, but that doesn't help. Let's say he has US citizen kids. Well - to qualify for this waiver, hardship to kids doesn't count. He's out of luck.

"Afraid to go back? File for asylum!"

General fear of return is insufficient to win asylum. It must be on very particular grounds. Despite being federal, asylum law doesn't operate the same in all states. Failure to win asylum results in being placed in removal proceedings. And that's if Dreamer had no prior contact with ICE. If he has, he likely has an in absentia order of deportation. That means he would be barred from applying for asylum, unless he can show conditions in his country of origin have changed to create a new type of fear he didn't have before. Filing such a motion, if denied, would put him on the radar for deportation. 

"Just wait for the law to change."

Probably the best advice so far; "best" being relative. In the meantime, can't go to school, work legally, or drive. The #DreamAct has failed for 17 years and counting.

"Get married!"

And set down deeper roots into a country refusing to let him stay?

Even if he did, he still needs to win a waiver and return home to reenter. That waiver wasn't allowed to be filed inside the US until 2013. And still need to show hardship to USC spouse. Hardship to our Dreamer is legally irrelevant.

"Don't you have TPS or something?"

Only some Dreamers do; depends on their country. The largest proportion of Dreamers are Mexican and Mexico has never been designated for TPS. (And probably never will.) But this is being taken away by the administration, country by country, determined to leave #dedocumented as many immigrants as possible.

"Go talk to immigration."

In other words, serve yourself up to ICE. Not a good idea. They're not there to help. You're not setting up a payment plan with the IRS. Walk in, and you're on your own, buddy. No lawyer either.

"Ever been a crime victim? Maybe you can get a U Visa."

No, thank God. So no visa for me?

Nope.

Wait...I remember one time my work permit and valid SSN were stolen. I spent months fixing it. Does that count?

No. Not a qualifying crime. Sorry.

"Get your employer to sponsor you."

You're not eligible for a green card inside the US if you have more than 6 months of unlawful presence. So your employer could start the process but you couldn't file for the green card, so what's the point in starting? Also, you can't leave and come back because of 10 year bar. By the way, your employer has to test labor market first and give job to qualified US workers first.

"I'm from El Salvador. I've saved up $120k. Can't I invest and create a business that'll hire US workers?"

No. El Salvador isn't on the treaty investor country list.

"I'm from Honduras. Can I?"

No. Honduras is on the list but unlawful presence prevents you from getting a visa.

"What about the 10 years law?"

No such thing. Please don't listen to rumors on the street or what you read on the Internet. There is no law that prevents you from deportation if you've been here for more than 10 years. One of the dangers lurking for Dreamers and people like them is the bad advice floating around. One of the most persistent rumors is the "10 year law" - that if you're here for 10 years (and, in some versions, have kids here) then you cannot be deported. No such law ever existed.

"What if I serve in the military?"

There was a program called MAVNI that allowed getting citizenship for certain noncitizens with certain skills. But It expired in 2016. The current administration has failed to renew it. So, you can't serve.

"Can't I change status to a student visa?"

No. Unlawful presence requires you to leave. And once you do, you trigger the 10 year bar to reentry. You can't switch to ANY other status, actually. All for the same reason.

"Good news! I found out my grandpa became a US citizen and filed for all of us back in May 2001! I'm good now, right?"

So close, but no. Unlawful presence makes it impossible to qualify for a green card even though you have an approved petition. If it was filed before 4.30.01 you might have been ok under an old law that was never renewed. But May is too late.

"Ok my brother was born here. He can file for me, right?"

Yes, he can file a petition, but no, it won't lead to a green card. You still have to leave. And when you do, you trigger the 10 year bar. You can't get a green card inside the US. Besides, sibling petitions take 13+ years to become current. Filing a petition, then, gives ICE 13 years to find you.

I could go on and on. Immigration lawyers reading this will identify with a lot.

Remember: This isn't your granddaddy's immigration system. It is usually impossible to comply with. It is full of legal pitfalls. One mistake and boom! You're in immigration court fighting to stay.

So before you judge the 800,000-some Dreamers, or the rest of the 11 million plus undocumented population, or the forcibly dedocumented, or the ones currently in legal status struggling to remain so, ask yourself: "Were they given a fair chance to fix their status?"

What do you do if you've endured persecution and torture so horrible you can't talk about it, but the law requires you to talk about it?

Now let's say you have a lawyer willing to talk for you. That would be a good thing, right?

Our government doesn't think so. In fact, the government's top lawyer, Jeff Sessions, thinks the system's rampant with fraud, and people claiming fear of return is just an "easy ticket" into the United States. Read on to see exactly how wrong he is.

In late August, I got a call to investigate the case of a woman from Uganda detained at Dulles Airport, denied entry on a valid student visa. In talking to her cousin in the US, I learned she intended to apply for asylum. She had been through so much persecution that she couldn't talk about it, and the cousin was afraid she would "just shut down and cry." And she didn't talk. She couldn't.

So I spoke for her. I entered my appearance on the proper form, and wrote that my client was traumatized, couldn't articulate the fear of return, and demanded she either be scheduled for a hearing on her fear of return (the first step in asylum) or at least I be permitted to talk to her. I needed all of 5 seconds to advise her of her rights.

Every single one of my requests was denied.

She got deported the next morning. I thought it was game over. Her flight stopped in Dubai en route to Kampala, Uganda. But when she landed in the airport in Dubai, she ran. She hid herself in the airport with Emirates personnel and airport security looking for her. I had tracked her flight online and for the first time, connected with her as she hid in Terminal 3. And learned her story.

Her nickname is Ella. Caught with her girlfriend in their hometown, the couple was paraded naked in the streets and tied up. The mob poured paraffin wax over them. While they searched for car tires to light, the police arrived, stopped the vigilantism, but arrested the couple. On release, they moved to Kampala. But Ella's family was not happy at being "shamed." Her own father sent a man to "cure" her by raping her, and rape her he did. She tried to go to the police, only to be rearrested on charges lodged by her own family of "recruiting young girls into homosexuality." Ella tried to kill herself with pain pills even as she faithfully reported to the police every Thursday. Her cousin counseled her out of her attempted suicide. Eventually she was able to obtain that student visa - only to have all her hopes of escape denied by an agent who knew she was traumatized, but *refused* to accept my representation as her lawyer.

It was now 3 am and I had been receiving this story via WhatsApp for nearly 2 hours. I was sitting in my family room, totally clueless on how I could stop her forcible removal to Uganda. On a whim, I called UNHCR in Dubai. And they responded. Three amazing officers took my client's case, and worked with the airport to allow her to stay there - in legal limbo - for the next month. Along the way we assembled a rockstar team of lawyers - our own Humza Kazmi, Sirine Shebaya, and Mariko Hirose from IRAP (think #MuslimBan challengers!), among others. We obtained documentary proof - some of it had to be obtained by secret nighttime visits to hiding places to avoid suspicion - of the rape, torture, and abuse. She is now in Kenya - still in a dangerous situation, but at least away from her family.

Despite Sessions saying it's an easy ticket, the law is not on our side. If CBP wanted to, they could parole her back into the US, admit they should have sent her for a credible fear interview, and let us handle her asylum claim. We've submitted all the evidence, including a statement from Dr. Saba Maroof Hamzavi, psychiatrist, that she likely suffers from extreme PTSD.

They said no. Expedited removal order was legally proper.

I don't have a happy ending here - at least not yet. We're going to keep fighting to find a safe place for Ella. Her case shows the need for access to counsel: I needed only 5 seconds to advise her. It shows the ease with which an officer can deny this so-called "easy ticket" to the most vulnerable. It shows what gay people have to endure around the world. It shows how wrong Sessions & Co. is.

But it also shows something else. It shows the humanity of strangers from Uganda, Kenya, the UAE, DC, Michigan, New York, and Seattle coming together over WhatsApp and conference calls to help this woman they didn't know. It shows the indefatigable human spirit overcoming tribulation.

​Perhaps most of all, it shows the very human need to protect and be protected.

​#BringEllaBack

On January 25, 2017 President Trump announced two executive orders on immigration, largely in line with the hardline stance he embraced during his campaign.

The first executive order is called "Protecting the Nation From Terrorist Attacks By Foreign Nationals." 

The second executive order is called "Enhancing Public Safety In The Interior of the United States." 

It stands to reason that the administration, in its zeal to deliver swiftly and visibly on campaign promises, begin with hardline anti-immigration policy outside the United States, as the President has nearly unfettered authority granted by law to control the admission of aliens into the United States. See INA 212(f). It is legal to discriminate on national origin or political and/or religious ideology when it comes to admission of aliens. For an administration that embraced nativist rhetoric that ultimately won the White House then, starting at the border is the low-hanging fruit. It's easy to come up with any scheme desired, because courts are unlikely to step in to stop it.

Enter Trump, Kobach & Co. These executive orders on immigration reek of nativist rhetoric. They are framed by a narrative of Muslims (and especially Syrians) as terrorists, and immigrants as threats to public safety. Like its failed predecessor, NSEERS, it blacklists entire countries, and mandates a scheme that will enable countries to continue to be blacklisted by executive fiat, while placing the blame on those countries for being blacklisted. They utterly fail to recognize a single redeeming quality of any immigrant, preferring instead to look only at an "alternative fact" balance sheet of liabilities.

Turning attention towards the inside of the United States, the administration seeks to deliver on its promise to deport. They need more officers and they'll get hired. But it's still not enough - there are too many people. So they will crowdsource deportation to law enforcement around the country, and anyone else who dares challenge the administration's authority. Because the number of aliens with serious criminal records is too low to satiate the administration's nativist base, prioritization schemes have been eviscerated. Everyone is subject to deportation, and their due process rights (limited now) will likewise be eviscerated.

For each blanket ban, the government gives itself authority to grant exemptions - what remains to be seen is what color the "exemptions" are. It also gives itself even more authority to deny visas.

No administration-turned-regime would be complete without a bit of propaganda. So, under guise of keeping the public informed, it will publish lists of immigrants with criminal backgrounds, terror-related convictions, and the like on as much as a weekly basis. This will become part of a permanent government record, an official narrative that feeds off its own policy, laying the groundwork for future dystopian policy.

​Here's how they work:
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Executive Order #1: Protecting The Nation From Terrorist Attacks By Foreign Nationals

The order's salient points:

1. The Order claims that protection of the nation requires those who commit acts of bigotry and hatred, violence against women (including "honor killings") or persecution of a protected class. The Order does not state the obvious: that all these acts are already grounds of inadmissibility under INA 212. The Order also includes a vague reference to "not supporting the Constitution" as a visa requirement. That way, if the admitted immigrant does something the government doesn't like, they can be caught in a lie. This same requirement currently exists for naturalization - but it also provides a way to denaturalize a US citizen. See 8 USC 1451(c). They've taken a rather obscure law and made it generally applicable. That's a recurrent theme throughout these orders. ​
2. The Order blacklists entire countries. It does this by creating a scheme that requires the Secretary of Homeland Security to determine, within 30 days, new requirements the government will now need in order to adjudicate a visa application. It could be anything - as the earlier section stated, knowing whether a foreign national supports the US constitution or has engaged in an act of hatred would make a visa applicant inadmissible. The report must list countries that do not or cannot provide the required information. While this report is being generated, nationals from 7 countries will be flatly refused entry into the US. These countries are Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. This is the first iteration of Trump's "total shutdown of Muslim immigration until we can figure out what the hell is going on."
3. After the 30 days are over, we will have a new list of blacklisted countries. These countries will be listed on a Presidential Proclamation, and will have the force of law. It may be the same 7 countries from the immediate 30-day ban, or more or less. Those countries will have 60 days to start providing the required information, whatever it is, if they want their nationals to be able to enter the United States. For those countries on the Proclamation, blacklisting will continue until compliance with the requirements occurs. Thereafter, any country may be blacklisted at any time.
4. Individuals from blacklisted countries may, during any blacklisted period, be admitted on a case-by-case basis.
5. The visa ban affects all nationals of these countries who are not US citizens. That includes green card holders.
6. The President has been empowered by Congress in section 212(f) of the INA to exclude any class of foreign nationals, with nearly no limitation. Thus, the scheme in the Order and resultant Proclamation will likely survive constitutional scrutiny, shielded by the plenary power doctrine.
7. Section 4 of the Order is the creation of a scheme of "extreme vetting."  The language is extremely vague - not unusual for executive orders - that merely mandate creation of mechanisms to verify identity, criminal intent, and likelihood of ability to contribute to the United States. The contribution portion is new: while it is beyond dispute that immigrants contribute, blending it into the requirements for a visa may pose an insurmountable obstacle and yet another extremely easy way to deny admission.
8. The Order shuts down all refugee resettlement for 120 days, and for Syrians indefinitely, during which time vetting procedures are ordered to be, for lack of a better term, vetted. The scheme is similar to the blacklisting procedure described above: after 120 days refugee admissions will resume only for countries that pass the newer, more stringent requirements. Refugees who would have been admitted 120 days before may only be admitted if they pass these newer requirements. This is akin to completing a college degree, only to be told on stage that you have to go back and take another class.
9. Refugees fleeing religious persecution will be prioritized, but only if they are a minority religion in the country. This clearly means non-Muslim minorities.
10. Moreover, the worldwide cap of refugee admissions will be reduced to 50,000. The 120-day shutdown will be used to pick and choose which refugees to admit. My educated guess is it will not include many Muslims. There is a case-by-case exception to the 120-day shutdown as well
11. The plan for Syrians is truly despotic. While shutting down their resettlement, the US government will create "safe zones" in Syria and in neighboring countries. Look at the terms used in the EO: firm settlement and third-country resettlement. These are legal terms in asylum law, and if a foreign national is firmly settled or resettled, they are statutorily barred from asylum in the US. The US will create these so-called "safe zones" and arbitrarily label them as zones in which people are firmly settled. A Syrian who goes there (and may not have any choice) would then be ineligible to seek asylum in the United States.
12. The Order directs consideration, but stops short of mandating, the rescission of exemptions to the terrorism-related inadmissibility grounds (TRIG) under INA 212(d)(3)(B). Obviously, terrorism and material support of it are grounds of inadmissibility to the US. But overly strict application of these grounds led to absurd results, such as women who were forced to cook and clean for terrorist warlords being denied asylum on grounds they "materially supported" terrorism. So over the years, Congress allowed DHS to create situational and group-based exemptions. The new EO recommends rolling back to the overly strict application of TRIG.
13. Complete the US-VISIT biometric entry-exit tracking system first recommended by the 9/11 Commission.
14. All applicants under the Visa Waiver Program must be interviewed. This is a clear nod to the attacks in Paris and Brussels, where EU citizens of Middle Eastern descent (who would have qualified for visa-free entry into the US under the Visa Waiver Program) engaged in horrific acts of terror. 
15. Propaganda: Every 6 months, names of individuals convicted or charged with terrorism-related offenses, or those deported from the US, radicalized and thereafter engaged in terrorism-related acts (not necessarily formal crimes), plus information breaking down violence against women and so-called honor killings in the US will be published. This will create enormous pressure to charge and convict under terrorism-related criminal statutes, and may also lead to the enactment of more such statutes. It creates a governmental stage on which the state-sanctioned narrative of the dangerous Muslim immigrant can play.

Executive Order #2: Enhancing Public Safety In The Interior of the United States

The order's salient points:

1. This is a statement of the policy of the executive branch under Trump. Presumably, all actions taken by the Trump administration will be in line with the framework, assumptions, and thrust of this Order.
2. The policy sees "many" out of status aliens as a significant threat, with those who have committed crimes to be a greater threat. The policy does not explicitly state that an out-of-status alien could pose no threat, nor does it recognize any contributions of an out-of-status alien.
3. The policy sees unilateral detention and deportation as the sole means of enforcement of federal immigration law, and seeks to reduce or eliminate the right to contest such enforcement.
4. The policy sees so-called sanctuary cities as wilful violators of federal law, when in fact sanctuary cities merely refuse to assist federal immigration authorities perform their enforcement obligations.
5. Although prior administrations reached record-high numbers of deportations and engaged in noxious practices such as detention of refugee women and children, the Trump administration finds that the federal government has failed to discharge its duties of enforcement.
6. Enforcement necessarily includes mandatory use of all available means to detect and remove aliens, without regard to the consequences, such as resource drain on state and local law enforcement, loss of federal funding, engendering mistrust between community and police, due process and other constitutional concerns, or deleterious effects on public safety.
7. In contrast to prior schemes of prioritization of removal, the new policy is, essentially, to not prioritize. This means everyone is at risk, not just those with serious criminal records. The policy defines as a priority for removal anyone not only convicted of a crime, but anyone charged with a crime, or committed acts which would constitute a crime (whether proven or not), who have a final order of removal (whether such order was lawfully obtained, and without regard to the passage of time), and a catch-all: anyone whom the immigration officer believes poses a risk to public safety or national security. When all out-of-status aliens are seen as a threat to some degree, the catch-all provision on paper (and certainly in practice) provide justification for apprehension and removal of anyone the officer comes across.
8. Within one year, aliens and those who faciliate their unlawful presence may be subjected to civil fines and penalties. There is no indication that a lawyer representing an undocumented personn may not be subjected to such fines, nor an employer who unknowingly hires one, or indeed, anyone who helps an undocumented person in any way.
9. Up to 10,000 additional deportation officers will be hired.
10. Resurrect the failed 287(g) program, which deputized local law enforcement to begin the deportation process when they come across a person they superficially determine to be in the US without documentation. Also resurrect the failed Secure Communities program, which also set up ill-conceived federal-state partnerships on immigration enforcement, which is a solely federal task.
11. Propaganda: Where a detainer is not honored, criminal actions performed by such aliens shall be made public weekly. Data on aliens serving time shall be published quarterly. 
12. All diplomacy with foreign nations shall include a condition precedent that the country swiftly accept its nationals who are removed from the United States.
13. Aliens who are not green card holders are unable to benefit from the Privacy Act. This means all their personal identifying information can be shared and disclosed.

Donald Trump has allayed all fears of flip-flopping on immigration after his speech Wednesday night in Phoenix. His 10 point plan isn't an immigration plan at all: it's a deportation plan. And a terribly ignorant one at that.

The first glaring hole in Trump's “policy” is due process of law. Trump came through with the same reprehensible rhetoric copied from nearly every failed exclusionary policy that we as a country have historically wound up regretting. Build a wall. Kick out the bad ones. Extreme vetting. Ideological tests. Blanket suspension of immigration from – let's cut to the chase – Muslim countries. And nary a mention of the legal process to do any of it.

Under the Fourteenth Amendment, all persons in the United States enjoy equal protection under the law. And under the Fifth Amendment, no person may be deprived of life, liberty, or property without due process. This is well-settled law reaching back hundreds of years – and yes, it applies in removal proceedings. The misconception that an undocumented immigrant has no rights in the US because he broke the immigration law is nonsensical: though the process due may vary, it applies to all.

This means an undocumented immigrant cannot simply be “gone” as Trump believes. Generally, there is a hearing, an opportunity to show cause as to why the immigrant should be allowed to stay. Deportation is not automatic. It's not even quick. And sometimes it's not even possible. Yet Trump – while pointing fingers at the current executive branch for writing their own law, simply says it will be done via a curious process he called “immediate removal proceedings.” This shows his ignorance of the process he wants to carry out about 11 million times. Khizr Khan was right: Trump hasn't read the Constitution.

In addition to his core policy of en masse forced deportations, he wants to asphyxiate the majority of undocumented immigrants by bringing back widely derided policies like 287(g), revoke executive actions that offered temporary reprieve from removal, shut out refugees, and hang a “CLOSED” sign on his new wall. This is simply Trump-speak for Mitt Romney's idea of “self-deportation”: make life difficult enough for undocumented immigrants, and they'll simply leave. Romney was ridiculed in 2012 for saying this, but Trump's outlined plan is effectively the same.

You've told the truth, the whole truth, and nothing but the truth. You hired a lawyer. You spent countless hours working with your lawyer on collecting evidence, rehearsing your story, making sure everything was correct, and that there were no gaps. You tell yourself that going through this is still better than what you would face it you had to return to your country. But you still lost sleep, couldn't eat, couldn't focus, cried and prayed.

Your lawyer finishes his legal argument, talking about social distinction and imputed political opinion, particular social groups and nexuses. You stand for what seems like an eternity while you wait for the robed figure behind the bench to start speaking.

And in a rushed voice, the robed figure dashes all your hopes into the concrete. Your asylum claim is denied. You are ordered removed. "Best of luck to you," says the robed figure.

Your world has come apart. What about your family? How will you work? What will you do?

Fear not, your lawyer tells you. We can go to the Board of Immigration Appeals; this isn't over. And so you do. The weeks begin to roll by, turning into months. After having waited so long to prove your case, you start wondering, "What if I had not said this?" or "Why didn't I talk about that?" The second-guessing is consuming you as you replay the individual hearing over and over in your head.

One day your lawyer calls you and the ground shakes once again, "The Board has dismissed your appeal. We can go one level up, to the federal Circuit Court, but I'm not too hopeful."

You've been waiting a long time now, and you've set roots in the United States.  What to do now?

This was a dilemma facing one of our clients who came to us with a freshly denied asylum claim that had been dismissed on appeal by the Board. And sometimes, it's the fact that the judges are so pressed for time, and have to render decisions so quickly, that they may overlook something. Maybe they didn't do something in the right way.

So we started combing through the trial testimony. We looked at every exhibit to see if it was given proper consideration. Did the judge mischaracterize anything? Did he say we didn't do something when we did? Did he say we did something when we didn't? Was there something he could have done that would have helped? Did he follow the proper procedures and honor due process? 

Work like this can be maddening. It's not unlike finding a needle in a haystack. Sometimes we might not find a needle, but we find something else that we might be able to use.  And we put everything together, filing not only a motion to reconsider with the Board, but (so that we didn't lose out on the chance) a petition for review with the federal Circuit Court. We first saw how the judge had constructed the denial of our client's asylum case, and noticed that the lynchpin of the denial was a "lack of corroboration" - something he used to find that our client could not demonstrate his eligibility for asylum. As an example, if a high school student can't show that he completed a college entrance exam, it doesn't matter whether he did everything else right: he can't get in. But the evidence the judge was insistent on was itself not viewed as favorable evidence by the Circuit Court. A judge shouldn't be permitted to deny a claim based on not having evidence that the higher courts consider weak to begin with.

Today, we received the decision. The Board of Immigration Appeals conceded that the immigration judge's decision - and the Board's own decision to dismiss the appeal was incorrect, and our client should have been given an opportunity to provide the evidence, even if it was weak. In the alternative, our client should have been given an opportunity to explain why that evidence wasn't available, and if good cause shown, for the case to have been continued so he could obtain it.

Judges need to make sure that people are given a fair chance to submit all evidence that could help them in their cases. Sometimes it can be hard to know whether a piece of evidence is required or should be submitted. Judges may be under immense pressure to adjudicate cases quickly, but this cannot come at the price of prejudice to a person's claim.

Our client has won a second chance to convince a judge that he deserves to stay in the United States. This is due process, and it's what makes our country great.

Hassan M. Ahmad, Esq.

As of September 11, 2012 the New York Times reports that 72,000 DACA (deferred action) applications have been received by USCIS.  And more good news: the first round of approvals is on its way!  That is much quicker than the 3 months (or longer) that many of us immigration lawyers were expecting.

We have prepared and are filing dozens of DACA applications.  In that time we've seen a number of issues that slow down the process: people have to save up money, they have to track down paperwork, finish school, or a number of other things before they can file.

A lot of people, however, are waiting to see what happens with the people that filed first.  Still others are waiting on the election, because of a belief that if Obama is re-elected in November, the program is safe, but if Obama loses, the program will be in danger because Romney has not yet supported it.

At the end of the day, this all illustrates one important point, one that we at the HMA Law Firm have told each and every one of our clients: Cada caso es diferente - every case is different.  I have seen a number of big mistakes people were about to make.  For example:

• One young man who entered the US on someone else's visa was told by a church official (who was helping do the cases for free) to file Form I-102 to request a copy of the "real" I-94 card.  This does not even make sense: how can you file for a duplicate copy of a fake document, and even if you could, why on earth would you want to?
• Another woman came in with Form I-821D completed by a volunteer and in response to the question "I entered the United States prior to June 15, 2007" had marked "No." The case would have been denied.
• Another young man wanted to file a case and had been told by "his community" to go ahead and try.  Unfortunately, he had two juvenile DUI's (driving under the influence of alcohol) which most likely would have barred him from approval. (Juvenile findings of deliquency are not "convictions" per se, and are treated on a case-by-case basis by USCIS, but given that only one adult DUI bars approval under DACA, two juvenile findings most likely would have, as well.)
• Another woman wasn't sure what she had marked on Form I-9 when applying for a job.  I explained to her it was a big mistake to file without knowing for sure, because if she had claimed to be a citizen, it could affect her future eligibility for status.

Some cases are simple, others are complex.  A lawyer can usually spot a lot of hidden issues that might come up.  The number 72,000 is encouraging, but given what we've seen, it's neither too high nor too low: it's what we expected because while there is a lot of interest, there is a lot of work involved in applying, as well.

We take a break from DACA to report some good news.

This morning, a hardworking man who'd been in the US, undocumented, since childhood, won special rule cancellation of removal under NACARA.

When his case originally went to trial, the previous lawyers were able to demonstrate all the requirements except one.  Under NACARA, if one has a clean criminal record, they only need to show that their removal would result in extreme hardship.  Moreover, the regulations presume hardship.  However, if there is a criminal conviction involving moral turpitude (a "CIMT") then the burden of proof goes up and the alien has to show exceptional and extremely unusual hardship.

Our client had an old petty larceny conviction from Virginia from the 1990's.  The records for such minor crimes are destroyed after 10 years.  And therein lay the problem: petty larceny is considered a CIMT, but there is an exception if it can be shown that less than 6 months of jail time was ordered.

With the record of conviction gone, there was no proof of the length of the sentence.  That meant there was no proof that the "petty offense" exception applied.  That meant there was a CIMT.  That meant the higher "exceptional and extremely unusual hardship" standad applied.  And our guy could not show that level of hardship.

His application was denied and he was ordered removed.  We filed an appeal with the Board, and obtained a letter from a criminal defense attorney in Virginia which opined that although possible, it is extremely unlikely for any jail sentence to be ordered for a first-time petty larceny conviction.

We argued that it is improper to require an alien to prove something, and also insist that only one form of proof (ie, the conviction record) is acceptable.  If an alien has to prove something (like the petty offense exception's applicability) then the judge should have considered any and all evidence.

The Board of Immigration Appeals agreed, rescinded the removal order, and sent the case back to the judge.  We told the judge that all issues in this case had been resolved except one.  That issue is now before you. If you believe the criminal defense attorney, then our guy has proven that the petty offense exception applies, and therefore standard cancellation of removal under NACARA applies, and hardship is presumed, and the application should be granted.  

The judge agreed, terminating proceedings and granting our guy his green card.  In doing so, he remarked it was the first time he had been given a direction by the Board to consider secondary evidence (like a criminal defense lawyer's opinion) of a conviction.

It's a burning question.  A lot of Deferred Action for Childhood Arrivals (DACA) applicants are using or have used fake social security numbers.  Sometimes people just make up numbers, other times they purchase numbers of the street, and sometimes they just use a friend's number.  

On Form I-821D, you are asked to provide your "social security number." On Form I-765 (the work permit application) you are asked to provide all social security numbers you've ever used.

A lot of people are concerned - rightly so - with this question: "If I used a fake SSN, should I put it down on the forms?  And if so, how?" 

UPDATE: As of 9/14/2012, USCIS has indicated that when they ask you for a social security number, they are asking about real, valid social security numbers only.  That means if you've used a fake one, you do NOT need to put it down.

The original posting has been deleted to avoid confusion.

Read about how to get a social security number right here.

It has been a busy week.  Our firm has received dozens of calls and emails about the new deferred action policy.  Here is the first round of frequently asked question (FAQ):

1.  Is this the DREAM Act?

No, it is NOT the DREAM Act.  Do not call it the DREAM Act, because if you do, you will confuse yourself.  This is not an act, not a law.  It is just a change in policy.  That means it's something the government has decided it will do.  They are agreeing not to deport people who meet certain qualifications.  And allow them to file for a work permit good for two years and renewable. 

2.  I'm over 30 now.  Do I qualify?

No, not under this policy.  However, you should still talk to a lawyer.  Depending on your situation, the government still might be willing to grant you deferred action.  But only an experienced lawyer can say whether this is a good idea.  If you try to do it yourself, you are playing with fire.

3.  I didn't finish high school.  Do I qualify?

See answer above.  However - this is a great time to go get your GED.  If you have a GED you can make yourself qualified.  There is no deadline for filing (like there is for TPS) so as soon as you are qualified, you can file.

4.  Can I file anything now?

No.  Wait for the regulations to come out.  We expect them in mid-August.  We hope it will be sooner.

5.  I walked across the border.  How do I prove when I came in?

This is why you should not file without a lawyer.  You only get one shot.  If you are denied, you will wind up getting put into removal (deportation) proceedings. But proving entry means showing the earliest possible proof of your presence in the US.  Your lawyer can explain how to do this.

6.  I have a misdemeanor on my record, how can I tell whether this will be a "serious misdemeanor"?  Will I qualify?

We do not know yet.  Make sure you get the conviction records.  Once the regulations come out, you should talk to a lawyer to see whether it will affect you or not.  

7.  I came here for the first time when I was under 16, but I left and came back. Do I qualify?

You have to have been in the US between 6/15/2007 and 6/15/2012.  If you were out of the country during these dates, you might not qualify.  However, we will not know for sure until the regulations come out.  It may be that we can argue that a short trip does not break the continuity of presence.

8.  What if I file and I don't qualify?  What will happen?

The June 15 memorandum makes clear that the existing guidelines for NTA issuance are consistent with the new policy.  This means that if you file and you don't qualify, you can (and probably will) be put into removal proceedings.  So be careful and do not be impatient.

9.  If I qualify, and I get deferred action, can the government change its mind and decide later to deport me?

Yes.  It can.  We hope that will not happen, of course, but it is a possibility.

10.  Should I get a lawyer to help me file?

Yes.  This is not the type of thing you want to do by yourself.  The main reason is, you want to be sure it's right.  Because if it is not, you will get put into removal proceedings.  A good lawyer will help you think of additional evidence to strengthen your case.  A good lawyer will be there to help you if the government asks for more evidence while your case is pending.  And if it's denied, a good lawyer can help you explore other options.

Last week, the Department of Homeland Security announced  a new focus more on criminal aliens, and not immigration status violators who committed no crime.  Almost immediately, both sides of the band camp began to speak - with one side cautiously welcoming the move as a sensible use of limited resources, and the opposing side likening it to a backdoor amnesty.

Immigrants are among the most vulnerable of American society.  Due to a lack of familiarity with the culture, language and procedures in the United States, they make easy targets for people whose motives are not so helpful.

So how does one know whether their case will be selected?  What is considered a low priority case? Who gets a work permit? The American Immigration Lawyers Association (AILA) recently issued a consumer advisory outlining what the government's announcement is and is not.  


Here's what you need to know: (adopted from AILA)

• Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the government's announcement.
• There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
• DO NOT file anything without speaking with a lawyer.  Otherwise you might as well hold up a sign for ICE telling them to come get you.
• Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.

Although some are saying otherwise, the simple fact is: this is NOT amnesty.  It's not giving legal status.  There's no form to fill out, or a fee you can pay to get status.  It is only an announcement that many immigration cases will be set as high or low priority.  That's all.  If you're lucky you will be a low priority case.  It's a way for the immigration courts to clear out some of their backlog.

This comes on the heels of the new "Morton Memo" - a new set of prosecutorial discretion guidelines—taken from a June memo by ICE Director John Morton—agency wide and the created a high-level working group to review pending cases and assign low priority (and this is up to ICE - you don't get a say in whether your case will be low or high priority); and try to set guidelines so that there is more consistency in how people are placed in removal proceedings.  (Yes, there is a lot of inconsistency.)  There is also a directive to determine what to do in compelling cases where there has been an order of removal already. 


One issue I have not seen talked about much is the flip side to this announcement.  If 300,000 immigration cases are demoted to low priority, what does that do to the rest of the immigration court cases?  That's right: those cases are now, relatively speaking, "high priority." The court dates will be quicker, and DHS will have more resources available to it to prosecute the case, make legal arguments for removal, spend the time and money to sniff out and prosecute cases for fraud, work with other federal agencies, and generally do what it does: detain and deport people.  

If you have a question about it - talk to an LAWYER.  Do NOT listen to your friends.  Do NOT listen to notarios or other "immigration specialists." Do NOT try to file something by yourself.  ICE is still an agency that exists to deport people: dealing with them unrepresented is like sticking your head in a lion's mouth: it might not bite, but it's not a good idea.