Immigrant Legal Resource Center What’s Up with DACA Lena Graber, Immigrant Legal Resource Center Gail Pendleton, ASISTA May 12, 2017

Agenda AK Where is DACA now? Risks and criminal issues Advance Parole Adjustment of Status AK

Where is DACA Now? 5 years in 728,285 DACA approvals 1.3 million immediately eligible 398,000 additionally eligible (but for Ed. Req.) 228,000 additionally eligible to “age-in” Total potentially eligible: 1,932,000. 4 years in As of March 2016: 728,285 DACA approvals Estimated immediately eligible: 1.3 million Eligible but for education requirement: an additional 398,000 Estimated eligible to “age-in”: 228,000 Total potentially eligible: 1,932,000.

DACA on the Rocks? Where is DACA Now? DACA still exists Still gets work permit for two years Protection against deportation is weaker ICE more likely to arrest DACA recipients Renewals worth doing New applicants must carefully weigh risk of giving info to DHS 4 years in As of March 2016: 728,285 DACA approvals Estimated immediately eligible: 1.3 million Eligible but for education requirement: an additional 398,000 Estimated eligible to “age-in”: 228,000 Total potentially eligible: 1,932,000.

DHS can terminate DACA at any time Where is DACA Now? DHS can terminate DACA at any time With or without Notice of Termination But that doesn’t mean you can’t fight them on it Recent case in Monterey of Judge thinking ICE should terminate when they wrongly claimed DACA had expired DACA Revocation/Termination 4 years in As of March 2016: 728,285 DACA approvals Estimated immediately eligible: 1.3 million Eligible but for education requirement: an additional 398,000 Estimated eligible to “age-in”: 228,000 Total potentially eligible: 1,932,000.

DACA Eligibility

DACA Eligibility Requirements Under the age of 31 as of June 15, 2012 (born after June 15, 1981); Came to the United States before their 16th birthday; Continuously resided in the United States since June 15, 2007, up to the present time;  Physically present in the United States on June 15, 2012, and at the time of making their request; Undocumented as of June 15, 2012 (Entered unlawfully or your lawful immigration status expired or was terminated) Currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 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. BP

© 2014 Immigrant Legal Resource Center Arrival before 16 . . . Simple if the applicant has never left If the applicant left and came back after age 16… Is still eligible if she established residence before age 16 How to establish residence? Attend school Work Long stay Mailing address Can be OK even if the applicant left for a long period and returned after age 16 This is independent of the continuous residence requirement, which only applies since June 2007. EQ Make sure we are up to date on any guidance. Do we want to caution against filing for these people, or is it okay to try? (If no crim issues, no NTA< can push this one, but ultimately it is there policy decision, no law here for us to argue) **Mark knows of someone that filed, ask him to follow up with applicant before training © 2014 Immigrant Legal Resource Center

Travel Between June 2007-June 2012 “brief, casual, innocent” means: The absence was short and reasonably calculated to accomplish the purpose for the absence;  Removal: The absence was NOT because of an order of exclusion, deportation, or removal; Voluntary Departure: The absence was NOT because of an order of voluntary departure, or an administrative grant of voluntary departure before the applicant was placed in exclusion, deportation, or removal proceedings; and Illegal purpose: The purpose of the absence and/or the applicant’s actions while outside the United States were NOT illegal. NOTE: Absences after August 15, 2012 will NOT be brief, casual, and innocent. Applicants will not be eligible for DACA if they left the United States since August 15, 2012 EQ Fleuti doctrine is the “brief casual and innocent” include fleuti cite © 2014 Immigrant Legal Resource Center

© 2014 Immigrant Legal Resource Center Departures and Travel Previous departures and reentries to the United States affect DACA applicants in four ways: Bars eligibility if they traveled after August 15, 2012 Can affect the interpretation of whether they entered before age 16 Can affect “continuous residence” Can affect the client’s other immigration options Clients subject to the Permanent Bar can still apply for DACA. If they have triggered the bar, then they cannot change that, and DACA may be their best option. EQ © 2014 Immigrant Legal Resource Center

Education Requirements High School Diploma GED High School Equivalent Currently in school Vocational ESL Math or literacy High school completion/GED course AK

Education Requirements Currently enrolled in adult education ESL Vocational Literacy Math Adult Schools usually run out of school districts, offer GED, ESL, reading and math, and others Often have citizenship classes to study for Natz exam – not clear that this would qualify for DACA Community Colleges “transitional studies” or similar enrollment for those seeking HS completion Classes are credit bearing and go on permanent academic record Job Corps is a federal program, but states and localities may have similar ones accessible to undocumented SF Conservation Corps is an example with job training and rolling admissions Career Technical Education A common term for various vocational schools (can be expensive, but good training) In CA, also called Regional Occupational Programs Library literacy programs – MAY NOT Qualify – often are more accessible to rural families; less formal

Education Requirements Minimum 4-6 months duration? (long enough to apply for DACA) Applicant must stay in school long enough to deal with possible RFEs Use evidence of enrollment that is close in time to date of application Courses in English, ESL, math, literacy, or science Art classes probably not enough unless it is an art degree and HS equivalent Enrichment classes like yoga, film appreciation, choir, cooking classes – not good enough Publicly run or by a non-profit Avoid for-profit, especially online How do I find a good program? AK

Criminal Bars to DACA Defined as any offense with a potential sentence of more than 1 year Felony conviction An offense of domestic violence, drug trafficking, burglary, sexual abuse or exploitation, driving under the influence, or unlawful possession or use of a firearm Any misdemeanor for which the defendant was sentenced to more than 90 days in jail Significant misdemeanor conviction Misdemeanor is defined according to federal law 18 USC 3559(a) to be a crime carrying a sentence greater than five days and no more than 1 year. 3 or more non-significant misdemeanors AK

Criminal Bars to DACA - EXCEPTIONS Expunged convictions Juvenile Adjudications Traffic offenses (unless involving drugs or alcohol) State-law immigration crimes Exceptions to the Criminal Bars AK

Risks of Applying for DACA

DACA – ASSESSING RISKS Should I apply for this client? My client is (or might be) on a gang list. My client has an expunged misdemeanor conviction for possessing an unlicensed gun. My client is borderline eligible because of two misdemeanor convictions and two driving without a license convictions. My client was has no criminal history but was deported three times between 2002 and 2006. Should I apply for this client?

What are the consequences of denial? DACA – ASSESSING RISKS Should I apply for this client? What are the consequences of denial? Loss of $465 fee Referral to ICE Risk to family?

DACA – ASSESSING RISKS How big is the risk of referral to ICE? 1. Is the client already in removal proceedings? 2. Would the client be referred to ICE under the NTA policy?

Two categories of cases referred to ICE: USCIS NTA Policy Two categories of cases referred to ICE: Egregious Public Safety (EPS) cases – are referred straight to ICE before a decision from USCIS. Non-EPS cases, where it “appears that the [noncitizen] is inadmissible or removable for a criminal offense not included in the EPS list” www.uscis.gov/NTA

“Egregious Public Safety Risk” EPS = under investigation, arrested for (with or without any disposition), or convicted of: Aggravated felonies such as: murder; rape; sexual abuse of a minor; “crime of violence” with 1 year sentence either imposed, or possible in a pending charge; alien smuggling; firearms trafficking; child pornography Known or suspected street gang membership Reentry after deportation for felony Technically they may be eligible for DACA, but it is still not worth the risk since ICE will likely arrest them. If wrongful arrest or charge, get it cleanly dismissed before applying. These DACA seekers should not apply unless already in removal proceedings

Inadmissible or Removable for Crime NON-Egregious Public Safety Risks CAN STILL BE REFERRED TO ICE “Inadmissible or deportable for a criminal offense” outside the EPS categories Crimes involving moral turpitude Drug offenses Borderline DACA cases with criminal history should screen for inadmissibility and deportability If denied, an applicant with criminal history that is a ground of removal would likely be referred to ICE If criminal history is not a ground of removal or EPS category: SAFER USCIS has approved 93% of DACA applications As of mid-2014, USCIS had referred 120 out of 604, 829 DACA applications to ICE

Advance Parole – Adjustment of Status One of the big benefits of DACA is that it allows recipients to request permission to travel outside the United States and return. This permission to travel and reenter is called Advance Parole.

Grounds for Travel For example: study abroad, educational conferences, academic research Educational For example: overseas assignments, interviews, conferences, training, or meetings for work Employment For example: travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative. Humanitarian DACA alone does not make people automatically eligible to travel abroad, outside US. In order to be eligible a person must first receive DACA and they must demonstrate that their travel is for one of three purposes: Education, Humanitarian or Employment. TRAVEL For PURELY VACATION PURPOSES IS NOT A VALID BASIS FOR Advance Parole for DACA Recipients. Trends: Generally, generous Interpretation of requirements Humanitarian Elderly (but not ill) Relatives Educational Requirement Tends to be a higher barrier Best to submit official documents from school Flag how we’ve heard of cases where individuals traveling for educational reasons have gotten denials or RFEs for official documents from their school evincing travel; Urge individuals to be creative in selecting what evidence to send and urge them to send lots of evidence Over 22,340 DACA recipients applied for and received advance parole as of December 2015. At the beginning of the program, USCIS appeared to be interpreting the requirements more generously to provide grants of AP, where the reason didn’t seem to squarely fit into one of the three categories. For example, USCIS would approve DACA recipients for advance parole for activities like visiting the grave of a family member, visiting an elderly (but not ill) family member, or a religious mission trip (under humanitarian grounds).   There were also reports of USCIS granting advance parole for DACA recipients who argued that they wished to travel with advance parole on humanitarian grounds to consular process or adjust status after returning to the United States. In these circumstances, DACA recipients made arguments that obtaining lawful permanent resident status would allow them to reunify with their families permanently (humanitarian grounds) or pursue certain types of employment (employment grounds). In the past year, however, there have been increased reports of adjudicators being more stringent in approving advance parole requests on these broader grounds. Approval rates for advance parole will likely vary by adjudicator and service center. Consequently, practitioners should be prepared to submit strong initial applications and robust responses to Request for Evidence (RFE). As of December 2015: 22,340 DACA recipients applied for and received advance parole

3-Year and 10-Year Bars Unlawful presence makes immigrant inadmissible for 3/10 years counted only from 4/1/1997 starts accruing at age 18 Bars are triggered by departure from US following unlawful presence

DACA and Adjustment of Status Advance Parole provides possible mechanism to apply for permanent residence in US rather than consular process: If person initially entered US EWI but later travels and re-enters the US under advance parole that parole entry may allow person to AOS under INA § 245(a) Even if expired or fraudulent (with waiver)

Matter of Arrabally and Yerrabelly Departure with Advance Parole is not a “departure” that will trigger the unlawful presence bars in INA § 212(a)(9)(B). -Matter of Arrabally and Yerrabelly 25 I&N Dec. 771 (BIA 2012) So while parole on AP is an entry for purposes of AOS it does not constitute a departure for purposes of triggering the 3/10 year bar for ULP. 2nd issue addressed: BIA case- leaving country with AP not a departure- so no bar! It has been applied to DACA and TPS recipients, but last I heard CIS was working on a general Arrabally memo – but that TPS AP eligibility for adjustment is not in doubt (just that the memo would clarify AP issues in terms of Arrabally in general, which would then apply to DACA recipients). In 2012, the BIA held in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), that a departure under Advance Parole was not a “departure” for purposes of 212(a)(9)(B)(i). Applied to DACA and TPS recipients. Applies to DACA!

Advance Parole and Adjustment DACA grantees who travel with advance parole may qualify to adjust status under 245(a). The “parole” entry to the U.S. will qualify the person for adjustment under 245(a) of the act. The “parole” entry will cure inadmissibility under 212(a)(6)(A)(i). The departure with advance parole does not trigger unlawful presence. All other grounds of inadmissibility AND other requirements to adjust status still apply. Overview

AOS under 245(a) ALERT: Relatives of LPRs or other ‘family preference’ beneficiaries INA 245(c) prevents adjustment of status for someone who, among other things: Employment without authorization In unlawful status on the date of filing for adjustment (includes DACA) Failed to continuously maintain unlawful status since entry to the US Admitted on visa waiver However, these DACA recipients may still be able to get a green card through consular processing. Immediate Relatives (parents, spouses, and children of US Citizens) are specifically exempt from this bar to adjustment. Yes- barring other inadmiss issues, he could pursue AOS and would not need a waiver bc AP travel is not a departure!. 2. Advance Parole = parole, such that the person is no longer inadmissible under - INA §212(a)(6)(A)(i) (present without admission or parole). 3. IR only! (not preference categories!)

Assessing Admissibility Carefully review all prior immigration enforcement encounters and arrests Check prior entries and exists and watch out for permanent bar Determine facts through FBI fingerprint checks, FOIA requests (to CIS, CBP, EOIR), and EOIR Court Information Line: (800) 898-7180 Be aware that a clean FBI background check does not mean there is no record! While AP can cure the obstacles presented by the manner of entry of person without triggering the ULP bar- there are many other inadmissibility issues that must be considered before applying for AOS. Do FOIA, FBI check, or criminal record check to ascertain the facts and assess the legal options. CRIM- even if DACA eligible, may not be AOS eligible! Still inadmissibile for purposes of becoming LPR! Ie certain drug convictions While DACA recipients do have opportunities to gain LPR status- all inadmis issues must be addressed before proceeding. AP cures manner of entry issue but not criminal grounds, fraud and misrepresentation, and other grounds. Opportunity and risk!

Resources ILRC has a DACA page with many materials and advisories for lawyers and non-lawyers Podcasts and video-casts on specific DACA issues http://ilrc.org/info-on-immigration-law/deferred-action-for-childhood-arrivals ILRC has a comprehensive DACA manual with greater detail on everything we discussed today http://ilrc.org/publications/daca-the-essential-legal-guide We Own the Dream is a website with DACA resources, created by DREAMers, with an online screening tool: http://weownthedream.org/