DAPA and expanded DACA update

On April 7, 2015, the Fifth Circuit issued an opinion dismissing Crane vs. Napolitano, which involved a challenge to the Obama Administration’s 2012 DACA program brought by the State of Mississippi and several ICE agents.  In Crane, the Court ruled that plaintiffs were unable to meet the “standing” requirement, meaning that they were unable to show that DACA caused them “concrete and particularized” injury.

This decision is significant and may impact the outcome of the pending challenge to the Administration’s DAPA and expanded DACA programs.  The Crane decision emphasized that courts should not engage in politics and that a plaintiff State may be unable to meet the standing requirement specifically for that reason. Meanwhile, also on April 7, 2015, U.S. District Judge Hanen refused to stay the original injunction of the DAPA and expanded DACA programs (see here).   The Fifth Circuit will have a hearing on Judge Hanen’s stay refusal on April 17 and thereafter will address the injunction directly.

The Administration’s expanded DACA and DAPA programs were scheduled to go into effect on February 18, 2015 and May 20, 2015, respectively. Approximately five million DREAMers and parents without lawful immigration status await resolution on the injunction.

DAPA and Expanded DACA Injunction

On February 17, 2015, a federal judge in Texas issued an injunction to block the implementation of expanded DACA and DAPA. DHS has indicated an intention to appeal the injunction.

Prospective applicants should note that there is still time for the government to fight the injunction as it applies to the May 20 DAPA program. The injunction most immediately affects the expansion of DACA program which was supposed to go into effect on February 18, 2015.Applications to renew or initial requests for DACA under the 2012 program and guidelines are unaffected and will still be accepted. The injunction also does not affect the ICE enforcement priorities memo, which focuses on deporting noncitizens who have been convicted of crimes.

In the meantime, prospective DAPA and expansion DACA applicants should work with a knowledgeable immigration attorney to prepare and strategize about the best way to move forward, so that time will not be lost once the government and court system works this out.

 

DAPA and DACA

Update: Injunction to block expanded DACA and DAPA

DAPA and DACA

Deferred Action for Parents of Americans and Lawful Permanent Residents (initial) and Expanded Deferred Action for Childhood Arrivals programs

Deferred action is a form of administrative relief from deportation that has actually existed in some form for a long time in the U.S. The agency, DHS, essentially allows a noncitizen to stay in the United States during a temporary period. Often, the person is allowed to apply for an employment authorization document (EAD or work permit), that they can use to work while their status is deferred. This kind of relief is granted on a case-by-case basis, which means that DHS will look specifically at your application and what you submit to support it in deciding whether you qualify. Your application is different from anyone else’s and so, you should take care in making sure your reasons for seeking deferred action are clearly set out.

Initial DACA grants were valid for two years. Applicants who received DACA under the initial program are now applying to renew their status. Applicants who receive deferred action through DAPA or expanded DACA will have that status for three years and may also be renewed.

It is important to note that deferred action is temporary – it does not confer a green card. Deferred action can also be revoked if the individual does something that makes them deportable or that changes their eligibility under the program. But deferred action does legalize an individual’s status and open the pathway to being able to stay lawfully in the U.S. while holding deferred action status.

Contact us to discuss any of these programs, and also renewing your inital DACA status

DAPA Eligibility

To be eligible for deferred action under DAPA, you must

  • Be the parent of a U.S. citizen or lawful permanent resident.
  • Have continuously lived in the U.S. since January 1, 2010.  – Breaks in physical presence can affect your “continuous residence.” Talk to your immigration lawful to discuss any travel you have had.
  • Have been present in the U.S. on November 20, 2014.
  • You will also probably need to be present in the U.S. every day from now until you apply for DAPA.
  • Not have a lawful immigration status on November 20, 2014
    • To meet this requirement, (1) you must have entered the U.S. without papers (no visa), or, if you entered lawfully, your lawful immigration status must have expired before November 20, 2014 (called an overstay); and (2) you must not have a lawful immigration status at the time you apply for DAPA.
    • Depending on the circumstances, you may still not have lawful immigration status even if you are the beneficiary on a family petition Consult with our immigration law office to make sure you qualify.
  • Have not been convicted of certain criminal offenses, including any felonies and some misdemeanors.
    • If you have any criminal record – even just an arrest, be sure to tell your knowledgeable immigration attorney, so we can determine if this will affect your eligibility

Expanded DACA Eligibility

To be eligible for expanded DACA, you must:

  • Have come to the United States before your sixteenth birthday.
  • Have continuously lived in the U.S. since January 1, 2010.
  • Have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or “be in school” on the date that you submit your deferred action application. Discuss your education with your knowledgeable immigration lawyer.
  • Have not been convicted of certain criminal offenses.
    • If you have any criminal record – even just an arrest, be sure to tell your knowledgeable immigration attorney, so we can determine if this will affect your eligibility.

Applying for DAPA and expanded DACA

  • USCIS will begin accepting applications for expanded DACA on February 18, 2015.
  • USCIS will begin accepting applications for DAPA on May 20, 2015.
  • The USCIS application fee is $465, which is made up of a $380 fee for the employment authorization application and an $85 fee for fingerprints. There may be USCIS fee waivers in limited situations.
  • Our office legal fees are usually fixed, but can vary depending on the complexity of the case. We can discuss legal fees with you when we discuss your background and eligibility.

What to do now

  •  Meet with your knowledgeable immigration attorney to discuss your options and eligibility
  • Begin gathering documents that you will need to submit to prove:
    • Identity and relationship documents (birth certificates, passports, custody papers)
    • Immigration status documents for your USC or LPR child, if applying for DAPA (birth certificate or passport, naturalization certificate, or green card)
    • Residence since January 1, 2010 and physical presence since November 20, 2014 (if required):
      • financial records (lease agreements, phone bills, credit card bills, bank statements)
      • medical records
      • school records (diplomas, GED certificates, report cards, school transcripts
      • (Get one document for each 12-month period since January 1, 2010)
    • Education (transcripts, diplomas, GED, class rosters, grade sheets)
    • Employment history (taxes filed (if any), W-2s, pay stubs/receipts, IRS ITIN/ or SSA Social security card). Discuss filing of taxes with your attorney.
    • Letters of support (notarized, discussing the type of person you are, that you have lived here since the relevant date)
  • Criminal record
    • You should request a copy of your criminal history from your state or from the Federal Bureau of Investigation (FBI) and from each court in which you had a criminal case, a letter describing what the judge ultimately decided in each case. This letter may be referred to as a “disposition letter” or “certificate of disposition.”
    • If it’s possible that you have an outstanding warrant, DO NOT go in person to request any of these records. If you know you have or even think you may have an outstanding warrant, you should consult with your knowledgeable immigration attorney to discuss the best way to get these records

Consult with your knowledgeable immigration lawyer about your eligibility for DACA (under either initial/renewal or expanded programs) or DAPA, and to begin working on your application – 215-791-7743

Attorney Dennis to moderate ABA discussion on children in immigration and removal

On Friday, February 6, 2015, Attorney Johanna Dennis, Chair of the ABA-YLD Immigration and Naturalization Committee, will be moderating a panel discussion at the American Bar Association Midyear Meeting in Houston, Texas. Information about the program and speakers follows below. More information about the ABA Midyear meeting can be found here and about Young Lawyers Division events here.

Age of Innocence? A Look at Recent Immigration Cases Involving the Child Status Protection Act, Deferred Action and Unaccompanied Minors in Removal (CLE Requested)
Friday, February 6, 2015
10:30 AM – 11:30 AM
Hilton Americas / George R. Brown Convention Center
Lanier Grand Ballroom B, Level 4

Description: In the past few years, protecting and advocating for children in the immigration arena has become more complex. While Deferred Action for Childhood Arrivals entered its second year, immigration practitioners and not-for-profit agencies saw unique challenges in assisting DACA eligible individuals. In June 2014, the U.S. Supreme Court affirmed a narrow ruling by the BIA governing which classifications of children could retain their derivative beneficiary priority date under the Child Status Protection Act. Over the past year, the immigration courts have seen a significant increase in unaccompanied minors in removal proceedings. This panel will discuss these issues and their causes, share insights and experiences, and offer suggestions for practitioners regarding representing children in immigration cases.

Sponsored by: Immigration and Naturalization Committee
Co-sponsored by: Individual Rights and Responsibilities Committee; Section of International Law
Program Chair(s): Johanna K.P. Dennis, JD Law Associates, LLC, Newtown, PA
Kristian Collins, Social Security Administration, Office of Disability Adjudication & Review, Tallahassee, FL

Moderator: Johanna K.P. Dennis, JD Law Associates, LLC, Newtown, PA
Speakers: Erika L. Glenn, Rodney Jones Law Group, Houston, TX
Qiang Bjornbak, Law Office of Qiang Bjornbak, Los Angeles, CA
Claudia Lopez, Law Office of Claudia P. Lopez, PLLC, Phoenix, AZ

Attorney Dennis expresses opinion on US public reaction to Ebola crisis

The number of people within the U.S. who have been infected here with Ebola rose from one to two people this week.  That is a total of eight people in the U.S. who have been treated in the U.S. for Ebola (five of whom were brought here specifically for treatment, one who died (Thomas Eric Duncan), and two nurses (Nina Pham and Amber Vinson) who were caring for Mr. Duncan). That is three people who have been identified and diagnosed  on U.S. soil as having Ebola. Despite the isolated nature of these cases and that the U.S. has four specialty bio-containment facilities that can handle Ebola quarantine, one source cautions that”[t]here could be as many as two dozen people in the U.S. infected with Ebola by the end of the month.” Two dozen. Meanwhile, in West Africa, more than 8,900 people have been infected in this outbreak and about 4,500 people have died.

Eight thousand nine hundred people infected in West Africa. Three identified as infected in the United States.
Four thousand five hundred deaths in West Africa. One in the United States.

The Ebola crisis is in serious need of a solution: treatment and cure. But not because of the threat to the United States. It is in need of solution because of the threat to West Africans. Yet, that is not the spin and perspective that the U.S. media and public reaction here have taken. Here, the reaction to the risk of exposure and to “one more” person being infected is reaction out of fear.

As I watch the public reaction to Ebola, as I read posts, comments, petitions, and news tickers, and I hear “expert” after expert opining on what should be done, over and over calling for closing the borders to keep the US “safe” from Ebola, demanding that our President do this or that, referring to West Africa as “infected”, I came across one article that finally resonated with me.

It said:
“[N]ow is the time when we need to check our irrational reactions to this horrible crisis and avoid policies that will divert scarce resources from actual remedies. And we know from past experience that airport screening and travel bans are more about quelling the public’s fears than offering any real boost to public health security. . . Last week, the US government announced a new airport screening regime for incoming travelers from West Africa. Passengers arriving from Sierra Leone, Guinea and Liberia to five US airports will now be questioned about potential Ebola exposure and have their temperatures checked. . . [Except] [w]e know from past outbreaks that these techniques don’t work. Entry and exit screening was used during the 2003 SARS pandemic. A Canadian study of the public-health response following the outbreak found that airport screening [using thermal scanners to detect fever] was a waste of money and human resources: it didn’t detect a single case of the disease.”

As for that “bright” idea (and everyone who propagates it) to just close off the countries in Africa (in case you forgot Africa is a continent, not one big country), and “[a]llow Ebola to fester over there, and keep people safe over here”(see above), here are the top three reasons from that article above that “bright idea” just won’t work:
1) “[D]etermined people will find a way to cross borders anyway, but unlike at airports, we can’t track their movements” – see Central American unaccompanied minors circa the past year;

2) Sealing off the countries in West Africa means supplies and treatments can’t get in or out either. Or you’re leaving doctors and medical teams to figure out their own ways to get in and out. So it doesn’t get better, it gets worse. More people die because the treatments we know have been successful, the treatments we have used to save “some” of ourselves, can’t get to them, because we turned our heads and closed our eyes and said “not my people, not my problem.Keep them away.”; and

3) That “bright idea” will further “devastate the economies of West Africa and further destroy the limited health systems there” by leaving some of the world’s poorest countries to handle this crisis alone.

So when you think about how to fight Ebola, and you think of protecting yourself and your country from it, I ask you:

Do you remember that the siren song of summer about US borders was close the one to Mexico, to send back those children and women who fled violence, gangs, torture and abuse, to keep “illegals” out?
Do you remember the bigoted anti-LGBT equality arguments?
Do you remember how far too many Muslims were judged and labelled as terrorists because of their faith.
Let’s not forget all the other snippets of US history, our laundry list of “types” and “categories” of people who have been excluded, banned, shut off, and otherwise told “you’re not welcome here” or “you’re not one of ‘us'”: Blacks, Japanese, Jews, Irish Catholics, you name it, that line has been drawn. Them v. Us. Over and over and over again.

If you take a step back from Ebola for a second, you’ll realize that all of these lines have been drawn and perpetuated by fear. You’ll realize that instead of thinking with clear heads and asking “how can we do the most good,” “how can we help,” “how can we cure,” we think “how can I keep you away from me.”

Flip the table and be the outsider. The rest of the world closes all of their borders to all Americans because some Americans let fear dictate how decisions should be made. We becomes they. And we are no closer to a solution.

Less than a handful of “people in the US have been stricken by Ebola; more than 8,000 have in West Africa. The best way to avoid more cases in America is by protecting West Africans.”   A real solution to this problem is two-fold. It is not simply about protecting “us” from “them”.  One article points out that “[i]n addition to containing the disease in the U.S., in the end, experts said, Ebola must be eradicated in the West African countries that it continues to plague.”  As Dr. Arthur Caplan, New York University Langone Medical Center’s medical ethics expert said, “The war’s going to be won in Africa. It’s not going to be won here.” And there is nothing more true.