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Proof of Congressman Luis Gutierrez’s knowing disregard for the best interests of DACA eligible individuals.

Our office has written several articles strongly criticizing  Congressman Luis Gutierrez and Senator Richard Durbin’s leadership on Deferred Action for Childhood Arrivals (DACA)

Our most pressing concern is their complete and total failure to recommend that all DACA eligible individuals be screened for alternatives to relief that may lead to permanent residency for themselves and in some cases members of their family.

The basis for this strong criticism is still valid because there are thousands, perhaps even tens of thousands, of dreamers who are losing the opportunity to obtain permanent residency because of poor, politically-driven national leadership.

What we have not shown is how much Congressman Gutierrez actually knew about his reckless disregard for the interests of thousands of individuals eligible for DACA.

Below is an unedited email that I wrote to Luis Gutierrez’s Director of Communications, Douglas Rivlin, who responded on August 23rd “I’ll take a look at what you sent me.” and to a short follow up with: “I think not.  Since we took it down, there has been some discussion of filming a different video, but nothing more on the one that was pulled down, as far as I know.”

Without further ado:

Dear Mr. Rivkin:

I called your office to take you up on your offer to discuss the article I wrote yesterday. Unfortunately, you were not available.

Senator Durbin and Rep. Gutierrez did not say “seek out free legal advice first” in the August 6 video. Durbin, with Gutierrez seated next to him, said this:  Don’t hire a lawyer or pay a notario…Virtually everyone will be able to go through this process without a lawyer”

That statement is reckless because it is wildly over-broad. I take it that Durbin and Gutierrez know that the video is reckless because they deleted it. But that’s not enough because the video has created very real detrimental reliance for thousands of dreamers.

Here are the two major problems that need correction, as I see it.

First, as for most concrete proof of its recklessness, it could and probably will cause a dreamer eligible for special immigrant juvenile status (SIJS) to skip a lawyer consultation, apply for DACA, and then age-out, permanently barring that dreamer from obtaining permanent residency. I have seen one individual who was eligible for DACA and SIJS. I have also seen an individual not eligible for DACA be eligible for SIJS.

It could also do the same to a person under 21 who is eligible for a U-visa. Individuals under 21 years of age who are recipients of a U-visa can petition for their  parents and unmarried siblings under 18 years of age. The same goes for SIJS, if this person skips consulting an attorney, they could age out and lose a huge opportunity for their entire family.

I retained a client who is under 21 and eligible for a U Visa when she came in for a consultation for DACA. If she is granted U status, her parents will get it, too, and all will be eligible to apply for permanent residency in three years.

It would also be a waste of time and money for the two above examples to apply for DACA.

Second, the statement appears to be directed at all potential DACA applicants, irrespective of whether the applicant has an outstanding order of removal. As you probably saw today, ICE deportation officers filed a lawsuit today with the intent to stop DACA. These same officers named in the suit also have the capability of executing the orders of deportations of individuals with pending DACA applications.

I deal with deportation officers on a regular basis and get this: many of them don’t follow protocol. The worst example was when an officer and his immediate supervisor lied to me repeatedly so that they could deport my client before he was able to have his motion to reopen heard. The client was deported because of these lies. Afterwards, the BIA reopened his case, but he is now stuck in El Salvador.

The above-example is but one. To the point: to state that DACA applicants with outstanding orders of removal do not need legal assistance is ridiculous and extremely dangerous. Even for dreamers without final orders, the language of DACA guidelines and the NTA guidelines are glaring red flags. Childhood arrivals guidance contains the following:

“This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”

The guidance also states that information will not be shared unless the person meets the criteria as set forth in uscis.gov/NTA. That means nothing, legally, becauseuscis.gov/NTA ends with this:

“It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.”

In other words, the future of DACA is an unknown and to say that no one will need an attorney has no basis in fact, which is dangerous to dreamers.

The right thing to do would be to admit the error of the video and incorporate at workshops and in the media the risks and alternative forms of relief cited in this email. The dreamers should be told to consult with the attorney of their choice, whether it is a nefarious attorney like me who is trying to help people and earn a living or a saintly non-profit attorney.

I am not alone in my opinion. Dozens of attorneys with impeccable credentials (Lory Rosenberg) have provided ample support of what is above.

Your employer and Durbin are putting their own interests—looking politically good—over that of the Dreamers—to be safe from deportation—because they refuse to correct the error within the August 6 video.

Thank you for your time and I hope that you can convince Congressman Gutierrez and Senator Durbin to do the right thing.

 

                                                                              Very Truly Yours,

 

                                                                              Bryan S. Johnson, Esq.

 

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