Skip to content

Posts tagged ‘Luis Gutierrez’

Over 100,000 DACA eligible individuals are also eligible for permanent residency

EDIT: The estimates below do not include immigrants from the age of 10-14 who will age into DACA eligibility over the next 4 years. Therefore,  the numbers below could be double of what I estimated below.


Below is a letter I wrote to another immigration attorney recently:

I hope you are doing well.

I am very concerned that practically no one in the immigration law community has emphasized the need to screen potential DACA applicants under the age of 21 for Special Immigrant Juvenile Status.

A significant number of my consultations for DACA resulted in a determination of SIJS eligibility.  Given that many of the DACA recipients are from Mexico and Central America–places with high rates of abandonment by at least one parent and high levels of violent crime– it is reasonable to conclude that there are tens of thousands of DACA-eligible individuals also eligible for SIJS as well as asylum, U and T Visas.

Indeed, a report by the Vera Institute, cited in an August 25, 2012 NY Times article titled Young and Alone Facing Court and Deportation, found that 40 percent of unaccompanied minors in 2010 were eligible for some form of relief. Out of that 40 percent,  22.8 percent were eligible for SIJS.

If 22.8 percent of DACA applicants under the age of 21 are eligible for SIJS, my estimate of tens of thousands is conservative. In fact, 22.8 percent of the estimated individuals eligible for DACA under the age of 21 is 129,200. The total number of DACA eligible individuals who are under 21 and eligible for permanent forms of relief  is 226,666.

This is not an insignificant number and does not include what outreach would do for individuals not eligible for DACA but eligible for SIJS.

Without a significant outreach from a credible source, many of these overlapped individuals will apply for DACA and age out of their eligibility for SIJS or other forms of permanent relief.  To me, this is unconscionable; if these individuals are eligible for SIJS, they should at the very least be informed of the choice and the possibility that it could lead to permanent residency.

Thank you for your time.

Push Obama to Expand Deferred Action

Deferred Action: No Further Need For Arbitrary Restrictions

Barack Obama won re-election yesterday. His actions on immigration in his first four years were indefensible and extremely anti-immigrant.

Nonetheless, he did do one thing that concretely benefited immigrants: Deferred Action for Childhood Arrivals (DACA).

Now that the election is over, immigration reform advocates must push the Obama Administration to depoliticize DACA and expand it to 1. eliminate any residency requirement; 2. include children who entered the United States before the age of 18; and 3. carve out exceptions to the education requirement for exceptional circumstances that made it difficult to attend school in the United States.


 DACA in its current form is arbitrarily restrictive. Many support DACA and the Dream Act because the undocumented beneficiaries were brought to the United States as children and therefore cannot be held responsible for immigration law violations.

First.To qualify for DACA, an individual must have entered the United States prior to reaching the age of 16. Any child who entered after turning 16 is rendered ineligible for DACA. That means that thousands of 16 and 17-year-old undocumented children are left undocumented for no discernible reason.

The 15 and under requirement penalizes many 16 and 17-year-olds because their parents thought it more prudent to smuggle them into the United States at a more mature age.

Alternatively, many 16 and 17-year-olds came the United States to escape violence in their homelands yet are not eligible for political asylum. The only substantive argument to exclude 16 and 17-year-olds from DACA is that they are more responsible for their transgressions given their older age.

Given that so many of these children came to the United States out of necessity, the apportionment of responsibility for the violation of the immigration law becomes substantially undermined. Regardless of the reasoning behind a 16-17 year old violation of the immigration law, the rationale behind the argument to exclude them from DACA seems more political than substantive.

Second. An individual must have entered the United States on or before June 15, 2007. That means that any undocumented child who entered after the date of June 15, 2007 is destined to remain undocumented for no discernible reason.

This 5 year residency requirement is arbitrary when applied those who were brought to the United States as children. Other residency requirements in Immigration Law, such as the 10-year requirement for nonlpr cancellation of removal, are grounded in the fact that the more time one has resided in the United States, the more equities one has gained.

The law does not explicitly spell it out, but the rationale behind residency requirements is implicit: the more time one has been in the U.S., the more one’s violation of the immigration law is mitigated.

Given that one of DACA’s main rationales for being is that its beneficiaries cannot be held responsible for immigration law violations,  the 5 year residency requirement cannot be justified by stating it “mitigates the child’s immigration law violation.” Put differently, politics was the only reason for the 5 year residency requirement. Now that Obama does not have to worry about an election, it is even more inexcusable to retain the 5 year residency requirement.

The Obama administration cannot in good faith tell the tens of thousands individuals eligible for DACA but for the fact they entered the United States after June 15, 2007 that they are any less deserving of DACA.

Furthermore, those who entered after June 15, 2007 need DACA more than the current beneficiaries. Most of the minors who are  in deportation proceedings are not eligible for DACA. Many have recently arrived in the United States fleeing unthinkable traumas in their home country yet are being punished for their recent entrance into the U.S.


Paula, a 14-year-old,  was living with her elderly grandmother because her parents–who have temporary protected status–were working and residing in the United States. Without adequate supervision, Paula was raped regularly by gang members over the course of several years. In 2011, when the gang members told Paula she would be killed, Paula cracked and told her parents what was happening.  Her parents arranged immediately for her to be brought to the United States illegally.

Paula was placed in removal proceedings when she arrived in the United States.  ICE is now trying to deport her. Paula’s parents registered her in school and she is doing okay.

Unfortunately, Paula is not eligible for DACA. The rape, by itself, means that she is not eligible for political asylum.  Paula is not eligible for Special Immigration Juvenile Status, either, because she lives with both her parents.

She may be eligible for prosecutorial discretion in the form of administrative closure, but this does not allow her to apply  for a work permit or the many other benefits that can come with DACA. Paula is left as she came: undocumented and with the daunting shadow of deportation looming over her every thought.

There is even more reason to expand DACA to children like Paula. Obama has said that DACA was the right thing to do. Exposing the most vulnerable immigrant youth to deportation and undocumented status for no substantive reason is not the right thing to do.

Third, there are many individuals who qualify for DACA except for the fact that they never attended school in the United States.

In many instances, these children did not go to school because they had to work to support themselves or their families. To many immigrant youth, school is a luxury.

Many came to the United States alone or were subsequently abandoned by their parents in the United States. Without an adult to provide basic necessities such as clothing, housing, and food, it is unreasonable to expect these children to attend school. 

As in the example of Paula, for many traumatized immigrant youth it is impossible to pass with satisfactory grades,  especially if they live without parents.

Some must work to support their family members who are unable to support themselves.  These individuals should not be penalized for helping their family before themselves. They still came to the United States as minors and the same rationale applies: don’t penalize individuals for actions they are not responsible for.

Helping Immigrants Requires Action

On the issue of immigration, Obama’s record consisted of empty rhetoric until he announced DACA. As despicable as the political motivations behind DACA were, it is impossible to deny the fact that it has and will profoundly and concretely benefit  tens of thousands of young immigrants.

Obama must expand DACA so that his actions conform with his lofty rhetoric that inspired so many immigrants 4 years ago.

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 That means nothing, legally, 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.