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DACA RECIPIENTS: DON’T PANIC! Possibilities for Obtaining Legal Status & Avoiding Deportation

There is great fear and uncertainty surrounding the Trump administration’s September 5th, 2017, announcement that it is terminating the Deferred Action for Childhood Arrivals (“DACA”) program.  Current DACA beneficiaries should understand this does not mean your deferred action status has been terminated at this time. To try to minimize the confusion, we have outlined below the main points contained in the administration’s announcement, and an analysis of how it will impact current beneficiaries. The second section reviews different paths which may be available to enable current DACA beneficiaries to gain legal status in the U.S., including status as Lawful Permanent Residents.

It is important to remember that in most instances, with limited exceptions discussed below, non-citizens present in the U.S. who are out of status and subject to deportation-removal are entitled to a hearing before an Immigration Judge, at which they will have the opportunity to be represented by counsel; to seek release under bond; and to apply for relief from deportation.

I.  What does the Trump Administration’s Rescission of DACA Mean for Current Beneficiaries?

The Trump administration’s order does not immediately strip DACA recipients of their deferred action grants, or of their work authorizations, which are currently valid.

USCIS will adjudicate DACA renewal applications and applications for work authorizations which have been accepted by USCIS as of September 5th, 2017. Individuals granted deferred action, and whose benefits expire on or before March 5th, 2018, may apply to renew their DACA status and work authorization, provided their applications are accepted by USCIS on or before October 5th, 2017an extremely short deadline which is now less than one month away! These renewal applications must be prepared and submitted well before the deadline, as applications received after that date will be rejected.

DACA recipients whose employment authorizations expire after March 5th, 2018 will not be permitted to renew their status, and will revert to the unauthorized status they were in prior to being granted DACA.

USCIS will still adjudicate initial DACA applications and requests for work authorization that were accepted by USCIS as of September 5th, 2017; applications received after that deadline will be rejected.

DACA recipients with advance parole who are currently outside of the U.S. should be admitted to the U.S., provided they return before their advance parole expires. DACA recipients granted advance parole are advised not to travel outside the U.S.: there is always the possibility overly aggressive enforcement will result in the person being denied admission to the U.S. upon their attempt to return. USCIS will no longer approve advance parole requests made based upon status as a DACA recipient.

II. Paths to Legal Status

There is no simple, clear, and easy way to assess whether a current DACA recipient may be eligible to gain legal status or qualify for relief from deportation because these assessments turn on the facts of each person’s particular case. Factors which must be considered in order to determine eligibility for  relief from deportation include: how the person initially entered the U.S.; whether the person traveled outside the U.S. after having been out of status, and was subsequently admitted or paroled back into the U.S.; whether the person has a parent, spouse or child who is a Lawful Permanent Resident or U.S. citizen; whether the person fears persecution or torture if deported to their homeland; and the nature of any criminal record the person may have. While a person may only have been eligible for DACA at the time they initially applied for that protection, today that same person may be eligible for different forms of relief or have an alternate pathway to legalization.

Outlined below are paths to legal status which may be available to DACA recipients or to others who are undocumented. While DACA is a valuable program, these other paths to legal status should be considered.

  1. Adjustment of Status. In certain instances, a person who is out of status may be able to adjust their status without leaving the U.S. and become a Lawful Permanent Resident. The person must have previously been admitted or paroled into the U.S. – including after traveling outside the U.S. pursuant to a grant of advance parole while a DACA beneficiary; or be the beneficiary of a petition for an immigrant visa filed prior to April 30th, 2001. Assuming they otherwise qualify, it may be possible to adjust status based upon a bona fide marriage to a U.S. citizen.
  2. Consular Processing of an immigrant visa, coupled with a provisional waiver of inadmissibility due to unlawful presence in the U.S.. The person must first show they are the beneficiary of an immediately available immigrant visa filed for them by their Lawful Permanent Resident (LPR) or U.S. citizen parent or spouse, and then carry their burden of proving their LPR or USC parent or spouse would suffer extreme hardship if they are denied the waiver. If the non-citizen is already in removal proceedings, this relief may still be available, but the process is more complicated.
  3. Cancellation of Removal as a non-permanent resident: once placed into deportation-removal proceedings, the non-citizen may apply for this relief. The person must demonstrate they have resided continuously in the U.S. for a minimum of ten years prior to being placed into removal proceedings; that their parent, spouse or child who is either an LPR or U.S. citizen would suffer exceptional and extremely unusual hardship if the person is deported; that they are a person of good moral character who merits this relief as a matter of discretion; and that they do not have a specified criminal conviction which would disqualify them from eligibility.
  4. Violence Against Women Act: This law enables certain spouses, children and parents of U.S. citizens or spousal and children Lawful Permanent Residents who have been subjected to assault, battery or extreme cruelty by the U.S. citizen or Lawful Permanent Resident family member to petition for legal status in the U.S., and to eventually apply to become Lawful Permanent Residents.
  5. Special Immigrant Juvenile Status: This protection is afforded to unmarried individuals, under the age of 21, after a juvenile or family court has made certain specified findings that the child’s reunification with one of his or her parent(s) is not viable due to prior abuse, neglect or abandonment.
  6. T and U Visas for Victims of Crimes: T visas are available to undocumented individuals who can demonstrate they: have been a victim of a severe form of trafficking in persons; are physically present in the U.S. or its territories on account of trafficking; have assisted in investigating and prosecuting trafficking, if over age 18; and would suffer extreme hardship or harm if removed from the U.S..  U visas are available to non-citizen victims of certain crimes; who have suffered substantial physical or mental abuse or injury as a result; and who have assisted law enforcement with investigating and prosecuting the perpetrators. If granted a T or U visa, the person may then be able to apply to adjust their status and become an LPR.
  7. Special Rule Cancellation of Removal through the Nicaraguan Adjustment and Central American Relief Act (NACARA).  In certain instances, children who were under the age of 21 at the time a parent was granted status as a Lawful Permanent Resident through the NACARA, may themselves be eligible to adjust their status and become Lawful Permanent Residents.
  8. Asylum, Withholding and Deferral Under the Convention Against Torture: Asylum, and the related withholding and deferral, are available to individuals who have a well-founded fear of persecution in their home country based upon their race, religion, nationality, political opinion, or membership in a particular social group, or who fear torture, at the hands of government actors, or persons or organizations the government is unable or unwilling to control. A grant of asylum will enable the recipient to apply to adjust their status and become a Lawful Permanent Resident, while a grant of withholding or deferral permits the person to avoid deportation and remain in the safety of the U.S.
  9. “Undocumented” Person May In Fact be a U.S. Citizen by Operation of Law: In certain instances, a child born outside of the U.S. to a U.S. citizen parent or parents, may acquire citizenship at birth. Also, children born in the U.S., or U.S. territories, except those born to diplomats in the U.S., are U.S. citizens.

The above is a very general overview of potential avenues for gaining legal status in the United States, and its purpose is to help current DACA beneficiaries understand that even though their deferred action will soon expire, there is still reason for hope.

Current DACA beneficiaries, and other undocumented individuals, should not fear they will be seized by ICE, put on a plane and deported! All individuals in the U.S., regardless of their legal status, are entitled to constitutionally mandated due process protections. This means that before a person without legal status can actually be deported, the person must first be placed into deportation-removal proceedings before an immigration judge. During their deportation-removal proceedings, the person has the right to be represented by an attorney of their choice, and to apply for relief from deportation. They also have the right to appeal any deportation order to the Board of Immigration Appeals, and may seek further review in the Federal Courts. (Individuals who have already been ordered deported; who unlawfully re-entered the U.S. after having been physically deported; or who overstayed after having been admitted to the U.S. under the visa waiver program, generally, are subject to removal without appearing before an Immigration Judge. In certain limited instances, however, it may still be possible to apply to reopen or rescind an existing deportation-removal order, and then to apply for the relief outlined above.)

DACA beneficiaries should explore all avenues of relief which may be available to them.  They must be careful to avoid being victimized by “notarios” or other unscrupulous charlatans who use the current climate of fear to defraud  non-citizens. They should resist being pressured to consent to being deported and instead seek the assistance of reputable and experienced immigration attorneys.  If a person cannot afford private counsel, they should check with their local bar association, or reputable not-for-profit organizations such as the American Immigration Lawyers Association; the Immigrant Defense Project, located in New York City; the Central American Refugee Center (CARECEN), located in Hempstead, New York; as well as Catholic Charities Immigrant Assistance Program, based in Amityville, New York, for assistance or referral to attorneys who are willing to provide free or low cost representation.

More Notable Wins for the Terezakis Law Firm for July 2017

SHOWING INEFFECTIVE ASSISTANCE OF COUNSEL VACATES DEPORTATION ORDER….

Clients are entitled to trust that their attorney will provide them effective and zealous representation in their deportation proceedings, because the outcome of those proceedings will determine the course of their life, and affect their entire family. Our clients’ children came to us after their father surrendered himself after learning he had been ordered deported in his absence. For two years, the attorney he retained had not moved to change venue in his case from the Immigration Court in Texas to the Immigration Court in New York where he was living. When he called his attorney several days before the hearing date, he was assured by the paralegal his case had been adjourned, and he would receive a new hearing date – that was not true: he was ordered deported and taken into custody.

Our client faced imminent deportation – within a week we had reviewed the file; obtained the requisite supporting documents; filed the required bar complaint against prior counsel; and prepared and submitted our motion to vacate our client’s deportation-removal order. We learned our client’s name was on the list for the next day’s flight. We obtained a stay of removal which stopped his deportation – he was the only one on the list not deported. Ultimately the I.J. found he had indeed been the victim of ineffective assistance, and he reopened his deportation order. He will now have his asylum claim determined on the merits.

EXPEDITED GRANT OF I-601 WAIVER

Our client, educated at one of America’s foremost University’s, returned to Pakistan to marry her childhood sweetheart. During the years she lived there following her marriage, she spoke out frequently and publicly against that country’s mistreatment of women and its rigid barriers preventing their full participation in society. As the result of her advocacy on behalf of women, she began receiving anonymous death threats, and then she and her family were fired upon while in their car. As a result of these threats, and her son’s medical condition, we were able to have her request for a waiver of inadmissibility for her husband expedited, and granted. She and her family will soon be safe in the U.S. and she will be able to have her young children – U.S. citizens – grow up with the freedom, security and opportunities available to them in the U.S.

“V” is for Victory! Terezakis Firm Wins for July 2017

Withdrawal of Aggravated Felony Charge After 12 Years & 3 Appeals:

To win deportation-removal cases, you must be tenacious; have a legal theory supported by the law, and keep fighting, even if you lose initially. Our client, a long term lawful permanent resident was charged with being removable for having been convicted of an aggravated felony.  Unfortunately, the elements of the aggravated felony he was charged with were not defined under the immigration law. During the 12 years we litigated his case, he was ordered deported 3 times, and 3 times we appealed to the Board of Immigration Appeals: each time, due to errors by the court, his case was remanded. Finally, in a different case, the U.S. Supreme Court issued a decision which adopted the same arguments we had raised from the outset. Using that new precedent, we filed a fourth motion to terminate, and after 12 years the government finally conceded we were correct and withdrew the aggravated felony charge. When we shared the news with my client and his wife, he literally cried with joy.

GRANT OF N.A.C.A.R.A. RELIEF UNDER HEIGHTENED STANDARD

As a result of the settlement in the American Baptist Church class action lawsuit, Congress passed the Nicaraguan and Central American Relief Act, which sought to remedy I.N.S.’s history of unfairly denying Central American’s asylum claims. The N.A.C.A.R.A. made it easier for members of this class to gain status as lawful permanent residents, and also allowed members of the class with certain criminal convictions to still become residents, provided they were able to demonstrate a heightened standard of hardship, and to show ten years of good moral character.  After a successful appeal; the passage of the ten years necessary to demonstrate his good moral character and rehabilitation; we won his hearing and he was granted status as a lawful permanent resident.

TWO MOTIONS TO RE-OPEN DEPORTATION ORDERS GRANTED

Our client, a long term lawful permanent resident, was rendered deportable as the result of his conviction for possessing a controlled substance.  His previous attorney was relieved by the Court, and when he failed to appear in Court for his scheduled hearing, he was ordered deported in absentia, i.e., in his absence.  We were retained after he was picked up by I.C.E., and when his physical removal was imminent.  We were able to demonstrate, with medical records, that the client’s father had been hospitalized following surgery on the hearing date, and the notice of the removal order was defective.  We convinced the Judge to vacate the deportation order, and then we were able to have his proceedings terminated based upon a new decision by the 2nd Circuit regarding the government’s burden of proof in controlled substance cases.

CONVICTION VACATED: RELIEF FROM DEPORTATION NOW AVAILABLE

It’s been 7 years since the Supreme Court ruled, in Padilla v. Kentucky, that it is ineffective assistance for defense counsel to fail to warn their client of the adverse immigration consequences of a proposed guilty plea, and yet, such failures continue to take place with shocking frequency. Unfortunately, the first time many learn their seemingly favorable plea bargain subjects them to deportation – removal, is after they are taken into ICE custody and are facing deportation. Often, the only way for them to avoid being deported is to go back to criminal court and try to vacate their conviction.

This past Friday, our CPL 440.10 motion to vacate our client’s misdemeanor conviction was granted, based on ineffective assistance of counsel. We convinced the Judge and District Attorney’s Office that if prior counsel had been aware the plea he negotiated would subject his client to deportation, he could easily have negotiated an alternate, non-deportable plea.  We then negotiated a plea to a lesser offense, and our client is now eligible for cancellation of removal as a non-permanent resident.

In far too many cases, a plea blindly entered into, subjects a lawful permanent resident to deportation, or renders an undocumented client ineligible for cancellation of removal. A major part of our practice involves guiding defense counsel and their clients safely through the immigration minefield; other times, as here, our familiarity with criminal-immigration law enables us to vacate a conviction and so help our clients avoid being deported.

Notable Decisions: April 2017

Deportation Order Vacated & New Proceedings Ordered After Winning Appeal before the Board of Immigration Appeals

Our client was ordered deported-removed based upon his convictions charged by I.C.E. as involving moral turpitude. Since they were committed within several years of his admission, he was ineligible for cancellation of removal. His prior attorney, although promising to file the paperwork necessary to apply to readjust his status as a lawful permanent resident, failed to do so, and the Immigration Judge ordered his deportation.
We were retained for his appeal, and complied with the requirements of Matter of Lozada, in order to raise a claim of ineffective assistance by our client’s trial counsel. We also argued the Immigration Judge’s decision, sustaining the criminal grounds of deportability-removability, was erroneous because she failed to utilize a recent, controlling, B.I.A. precedent decision for analyzing crimes involving moral turpitude, including Matter of Silva Trevino III. The B.I.A. reversed our client’s deportation order, and sent his case back to the Judge for new proceedings. She must now reconsider her initial, threshold, determination of whether our client’s convictions actually render him deportable. Even if she makes such a finding, we have already filed the paperwork necessary for him to apply to readjust his status, based upon his marriage to a U.S. citizen, in conjunction with a waiver of inadmissibility. Clear, well researched, legal argument, combined with sympathetic facts – our client’s wife and children ended up in a homeless shelter while represented by prior counsel – can and will win the day!

Grant of Cancellation of Removal for Non-Permanent Resident: Documenting “Exceptional and Extremely Unusual Hardship”, Rehabilitation for Criminal Convictions, & Favorable Exercise of Discretion Warranted

Among the most difficult burdens to carry in a deportation-removal proceeding, is showing that a client’s permanent resident, or U.S. citizen, qualifying relative would suffer: “exceptional and extremely unusual hardship” if the client is deported. The standard was carefully constructed to limit this relief to a handful of cases nationally every year. Our client’s daughter had suffered from seizures, but it was unclear whether these were only febrile seizures, attributable to her young age, since she had not had any for years. In addition to obtaining hospital records documenting her seizure history, and the records of her speech therapy, we also assisted her parents in obtaining neurological evaluations which revealed speech processing disabilities and previously undiagnosed learning disabilities. Independent psychological examinations and reports reinforced the diagnosis, as did testimony from the child’s teachers. We also showed the devastating impact on the young girl which her father’s deportation would have.

After clearing the hurdle of demonstrating “exceptional and extremely unusual hardship”, we also needed to convince the Judge our client deserved a favorable exercise of discretion. Through testimony we established our client was truly remorseful for his prior criminal convictions; had genuinely rehabilitated himself; gained insight into his prior misconduct; that he had a solid work ethic and that he deserved a favorable exercise of discretion. By winning his case, we not only avoided his deportation, but helped him to gain status as a lawful permanent resident.

Motion to Reopen Denial of Temporary Protected Status Granted

Our client, a Salvadoran national, enjoyed a grant of temporary protected status following the 2001 earthquake in that country. For years he enjoyed the right to remain lawfully in this country, and was granted employment authorizations. Unfortunately, he was eventually denied his T.P.S. renewal, due to his “criminal convictions”. Years later, fearing detention and deportation by I.C.E., he sought our assistance. Our review of his criminal history revealed the U.S.C.I.S. adjudicator had mistakenly read our client’s record, and that our client was in fact eligible for protected status. Our motion to reopen was granted, our client has been reissued his employment authorization card, and no longer fears being deported.

Federal Court Hearing Granted: Motion to Vacate Aggravated Felony Conviction

Our client, a lawful permanent resident, was found removable for having been convicted of an “alien smuggling” aggravated felony. He maintained his prior criminal defense attorney had told him his guilty plea would not trigger his deportation. We obtained our client’s release from custody following a Lora bond hearing, and have worked with an experienced federal criminal defense attorney in bringing a motion to vacate the conviction: we provided criminal-immigration expertise by writing sections of the motion dealing with the aggravated felony, and ineffective assistance of counsel, arguments. Our client was granted a hearing on his motion to vacate his conviction, when such motions are simply, routinely, denied. The hearing was commenced, testimony taken, and we are still litigating this matter.

Three, I.N.A. §601(a), Provisional Waivers of Inadmissibility Granted

A non-citizen who enters the U.S. without inspection, or who overstays a lawful admission after his visa has expired, and who remains in the U.S. for a year or longer in that undocumented status, is rendered inadmissible to the U.S. for a ten (10) year period. Even if the person has a family member who can petition for him to gain status as a lawful permanent resident, historically, he or she must first leave the U.S., and then if they are eligible, apply for an I.N.A. §601 waiver of their inadmissibility, as part of the consular processing of their petition for an immigrant visa, or “green card”. This process divides families by requiring the non-citizen to apply from outside the U.S. – a process that often takes years.

President Obama acted to ease this suffering by enabling certain non-citizens to apply for an I.N.A. § 601(a) provisional waiver of inadmissibility from within the United States. The person must demonstrate the denial of a provisional waiver will cause their lawful permanent resident, or U.S. citizen, parent or spouse, to suffer extreme hardship, which is a difficult standard to meet.

This past month, two of our clients, for whom we previously obtained § 601(a) provisional waivers, just received their green cards after successfully completing their Consular interview in their native country; and a third client just had his provisional waiver approved. We are consistently successful with these cases because we carefully document the financial, psychological, and emotional hardship our clients’ family members will suffer if denied a waiver. We carefully collect, index and submit: medical records and reports; psychological evaluations; financial and tax records; employment records; and our clients’ children’s educational and special educational records. These records are in turn supported by the carefully prepared affidavits of our clients, their family and friends. We ensure the applications we submit are easy to read, well organized, and present the hardship in a compelling manner. While time consuming, we believe it is important to build a stronger bridge to ensure our clients get across safely.

Motion to Reopen In Absentia Deportation Order Granted: Undiagnosed Mental Illness

Negotiating the intricacies of the deportation-removal process is extremely difficult for most immigrants, however, undiagnosed mental illness can make it virtually impossible. Our client, a Salvadoran national, was taken into custody shortly after entering the U.S. without inspection at the Texas-Mexico border. He was placed into custody, and promptly exhibited classic symptoms of paranoia and schizophrenia, including hallucinations and fearful behavior. After being released from custody, his mental condition continued to deteriorate; he missed his hearing in the Immigration Court and was ordered deported-removed. After years of suffering, and several hospitalizations, his condition was diagnosed and he was stabilized through medication.

We obtained, summarized, and presented his medical records demonstrating that his mental illness prevented him from appearing for his removal hearing. We convinced D.H.S. to consent to our motion to reopen his deportation order. On November 22, 2016, an Immigration Judge granted our motion to reopen the deportation order, and also terminated the proceedings against our client. For the first time in 18 years, our client is free of the fear of deportation and we are in the process of legalizing his immigration status. Meticulous preparation, including obtaining and reviewing the records of our client’s mental health treatment corroborated our defense of mental incapacity, and proved essential to winning this motion to reopen.