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Posts tagged ‘Deferred Action’

Front Cover of New York Times Article on Alternatives to Deferred Action For Childhood Arrivals

Since the announcement of Deferred Action for Childhood Arrivals, we at Amoachi and Johnson have repeatedly and sometime stridently stressed the importance of educating young immigrants about alternative forms of permanent immigration relief.

Kirk Semple of the New York Times took the time to listen to us and others regarding this important issue and wrote an excellent article in today’s paper, “Finding a Path To a U.S. Visa, Often by Luck.” 

An excerpt:

When Angy Rivera, an illegal immigrant, was a young girl in New York City, she was sexually abused by her mother’s boyfriend. He was eventually convicted and imprisoned, but only recently did Ms. Rivera find out that her cooperation with investigators had qualified her for a special benefit: a visa for victims of serious crimes.

Many young illegal immigrants across the country have similarly learned in recent months that they could be eligible for little-known visas that would allow them to put years of worrying about deportation behind them, immigration lawyers said.

These discoveries have come about as an unintended consequence of an immigration policy adopted last June by President Obama that allows young illegal immigrants, under certain conditions, to apply for the right to remain in the country temporarily and work.

The policy, called deferred action, has spurred hundreds of thousands of illegal immigrants to seek legal help, often for the first time in their lives. During these consultations, many have learned that they are eligible for other, more permanent, forms of immigration relief, like special visas for crime victims.

More than a dozen immigration lawyers around the country — from private practice, advocacy organizations and university law clinics — said that as many as a quarter of the young immigrants who have consulted with them about deferred action since last summer appeared to be eligible for visas or other relief.

“This whole time I had been in the system already and no one had said anything to me or my mom,” said Ms. Rivera, 22, who was born in Colombia and entered the United States on false immigration documents when she was 4. “It was out of the blue for me.”

The unexpected visa eligibility for so many young people highlights a defining facet of illegal immigration and of the debate over immigration reform. Many illegal immigrants are so fearful of contact with the authorities, or thwarted by language and economic barriers, that they live in a kind of isolation that often prevents them from taking advantage of opportunities or services to which they are entitled under the law.

It is a measure of this isolation that not even Ms. Rivera knew that she was a candidate for a special visa — even though she is an immigration advocate and writes a popular online advice column for young illegal immigrants.

She found out about her eligibility for the crime-victims visa, called a U visa, only last fall when she met with a lawyer at Atlas: DIY, a nonprofit group in New York City that works with young immigrants.

Her lawyer, Lauren Burke, said advocacy groups and government agencies had not always done an adequate job of informing illegal immigrants about their rights under the nation’s complex immigration laws.

“The onus is on the immigrant for him or her to find out the information,” Ms. Burke said. “But if you say, ‘I need immigration help,’ you are exposing so much about yourself and putting yourself at such risk.”

Deferred action allows recipients to work legally and live openly without fear of deportation. But it must be renewed after two years, and the program could be canceled by President Obama or his successors. As a result, illegal immigrants would generally prefer to obtain a green card or a visa that would open the door to permanent residency…

Read the rest here.

Obama administration crafts new DACA rule to exclude more dreamers

The Obama administration is ostensibly gearing up for comprehensive immigration reform while at the same time acting directly against the interests of immigrants.

On January 18, 2013, USCIS updated its “FAQs” on DACA.

The FAQs are put into quotes because there is at least one rule change dressed up as an FAQ.

USCIS’s update is by now widely known for its affirmation that DACA recipients are considered by DHS to be lawfully present in the United States. This was obviously spurred on by the fact that several states were denying DACA beneficiaries drivers licenses because they did not consider them to be lawfully present in the United States.

At first glance, USCIS’s updates seem to support DACA recipients against boogeyman anti-immigrant states like Iowa or Arizona.  But on closer examination, there is a rule change that was designed to exclude the number of young immigrants eligible for DACA. Question and answer 1 under the heading Miscellaneous states:

New – Q1: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process?
A1: Yes, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process.

This caught my attention because one of our clients would not be eligible under this new rule change.

When the DACA requirements were first published, one only needed to show that one came to the United States before one’s 16th birthday.

In fact, question 13 on Form I-821D asks: Date of Initial entry into the United States. The form emphasizes the importance of the initial entry, not whether the applicant established residence after that initial entry.

Our client did not establish residence in the U.S. until after reaching her 16th birthday. 

Under the rules at the time that our client applied, she qualified and received DACA. Under the new rules, she would not qualify for DACA.

Why did the Obama administration craft a new rule that restricts the amount of young immigrants eligible for DACA? Does Obama want to penalize young immigrants for having been lucky enough to have entered the U.S. for a vacation prior to their 16th birthday?

This new rule makes no sense and is anti-immigrant.

Snippet after snippet after snippet of evidence (De Osorio) reveals the Obama administration acting concretely against the same immigrants that he concurrently purports to want to include in a comprehensive reform package.

When all of the facts point one way, hope is useless. It is time to turn the other way–to abandon Obama–and find a new avenue for reform.

Obama Administration to DACA Recipients: You Are Second-Class Kids

Obama double speak

Truth you can only believe in if you dig through my dizzying maze of doublespeak.

On January 18, 2013,  USCIS supposedly came out with “new” information regarding Deferred Action for Childhood Arrivals.(“DACA”)  Of note is the purported clarification of whether or not whether DACA recipients are considered “lawfully present” by DHS.

USCIS’s full answer is as follows:

For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.(emphasis added) 

We knew all along that those who received DACA would not be considered unlawfully present for purposes of future inadmissibility. There is no controlling legal definition of what “lawful presence” actually means. However, for purposes of benefits such as eligibility for driver licenses or government-subsidized health care, most states look to the federal government’s definition of lawful presence, which relies heavily upon who is not unlawfully present under INA 212(a)(9)(B)(ii).

Once one looks at the specific definition, this seemingly complicated issue becomes quite simple:

“An alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

DHS has authorized the stay of DACA recipients in the United States. As such, DACA recipients are lawfully present. So why did USCIS feel the need to clarify this already-established fact just yesterday?

Because the Obama administration intentionally muddied the waters of what lawfully present means for DACA recipients in order to exclude them from medicaid and other health care benefits.

Shortly after USCIS started accepting DACA applications, the Obama administration made it clear that DACA recipients would be second-class deferred action recipients.

To be eligible for medicaid and other health insurance benefits under Obama’s new health law, one must be considered “lawfully present.” Prior the announcement of DACA, 45 CFR 152.2(1)-(7) defined what immigrants were “lawfully present.” Pay particular attention to the classes highlighted below:

Lawfully present means

(1) A qualified alien as defined in section 431 of the Personal Responsibility and Work Opportunity Act (PRWORA) (8 U.S.C. 1641);

(2) An alien in nonimmigrant status who has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission;

(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(d)(5)) for less than 1 year, except for an alien paroled for prosecution, for deferred inspection or pending removal proceedings;

(4) An alien who belongs to one of the following classes:

(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the INA (8 U.S.C. 1160 or 1255a, respectively);

(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of the INA (8 U.S.C. 1254a), and pending applicants for TPS who have been granted employment authorization;

(iii) Aliens who have been granted employment authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22), or (24);

(iv) Family Unity beneficiaries pursuant to section 301 of Public Law 101-649 as amended;

(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President;

(vi) Aliens currently in deferred action status;

(vii) Aliens whose visa petitions have been approved and who have a pending application for adjustment of status;

(5) A pending applicant for asylum under section 208(a) of the INA (8 U.S.C. 1158) or for withholding of removal under section 241(b)(3) of the INA (8 U.S.C. 1231) or under the Convention Against Torture who has been granted employment authorization, and such an applicant under the age of 14 who has had an application pending for at least 180 days;

(6) An alien who has been granted withholding of removal under the Convention Against Torture; or

(7) A child who has a pending application for Special Immigrant Juvenile status as described in section 101(a)(27)(J) of the INA (8 U.S.C. 1101(a)(27)(J)).

Immigrants in category (C)(10) have cancellation of removal applications pending in immigration court. Immigrants in category (c)(18)  have outstanding orders  of removal and report on an order of supervision. Immigrants granted deferred action outside of the DACA program are also “lawfully present.” Their EAD category is (c)(14).

The Obama administration made a new category for DACA recipients–(C)(33)–so that it could add paragraph 8 to 45 CFR 152.2 to exclude them from medicaid eligibility:

(8) Exception. An individual with deferred action under the Department of Homeland Security’s deferred action for childhood arrivals process, as described in the Secretary of Homeland Security’s June 15, 2012, memorandum, shall not be considered to be lawfully present with respect to any of the above categories in paragraphs (1) through (7) of this definition.

Put differently, if the Obama administration treated DACA recipients as the recipients of Deferred Action of yore, they would have had to include them in the definition of “lawfully present” for purposes of medicaid eligibility.

As one can see from the list above, the federal government already includes many recipients of prosecutorial discretion in the definition of lawfully present.

The reasoning is that if the government is consenting to one’s presence in the country and one is working and contributing to society, one should be afforded the same privileges of society’s most important safety net: medical care.

By intentionally excluding DACA recipients from medicaid, the Obama administration has yet again revealed its cold, disingenuous heart.

On the abstract level, the exclusion of DACA recipients may not seem like a big deal. However, many of these young immigrants are just starting out in the workforce and will not be able to afford health insurance. What happens if a young immigrant gets into a bad car accident, or is diagnosed with cancer? They will have work authorization but will only be able to use it to pay off the mountain of debt left by medical bills.

As per his routine, Barack Obama announced the DACA program with bubblingly  flowery words, noting that children of illegal immigrants “study in our schools, play in our neighborhoods, befriend our kids, pledge allegiance to our flag,” and also that:, “it makes no sense to expel talented young people who are, for all intents and purposes, Americans.”

What Obama did not say is that the poorest of these children are not for all intents and purposes Americans when it comes to medical care.  He left that dirty work to the bureaucrats in the Department of Health and Human Services, which provided an objectively farcical explanation.

Obama should have some integrity and consider DACA recipients lawfully present for purposes of medicaid eligibility. Lawfully present means lawfully present. It does mean lawfully present depending on the politics du jour.