Monthly Archives: October 2012

As election draws near, DREAMers watch anxiously

One week from today — assuming the election is not so close and contested as it was in 2000 and therefore ends up being refereed by the Supreme Court — we will know who will be in the White House from January 2013 until January 2017. For many DREAMers who are contemplating filing for Deferred Action for Childhood Arrivals (DACA) the outcome of this election is a major factor in making that decision.

It feels like this election cycle has been churning along for well over two years as a result of the lengthy Republican primary process as well as a near standstill of bipartisan compromise since the 2010 midterm elections. Yet in all this time the issue of immigration has scarcely come up.

Both presidential candidates promise to address the issue in the 2013-2017 term of office, and neither man has a squeaky-clean record to run on. Governor Mitt Romney positioned himself on the right flank of the Republican party during the primaries, pledging not to permit any kind of “amnesty” that would legalize the estimated 11.2 million undocumented immigrants in the country presently and offering only a watered-down version of the DREAM Act that would be based solely upon military service. When President Barack Obama announced a new Deferred Action policy on June 15 of this year Gov. Romney criticized it and pledged to end the policy of shielding young undocumented immigrants from deportation if he wins the election. In the second presidential debate Gov. Romney pledged to address immigration reform but took a stand both against “amnesty” and against a massive “round-up” of the undocumented population, leaving questions as to how he would accomplish this. To the extent that Gov. Romney has articulated an immigration policy it has largely been to encourage “self-deportation” by making life as an undocumented worker increasingly unbearable.

For his part, President Obama is vulnerable to the criticism that he has promised much and delivered little. He poured most of his political capital into passing the Affordable Care Act in March 2009, and the only significant movement of immigration legislation was the passage of the DREAM Act by the House of Representatives…but the legislation failed to secure the 60 votes required to overcome a fillibuster in the Senate, and the dream died. President Obama also makes much political hay about his attempts to target immigration enforcement on high-priority cases — ramped-up use of the Secure Communities program has turned most jail facilities in the United States into immigration screening points. Individuals arrested on criminal charges — irrespective of their guilt or innocence and mostly irrespective of the severity of the crime — are routinely flagged by immigration enforcement, interviewed by ICE officers, and either detained by ICE or pressured into signing stipulated orders for deportation. Averaging about 400,000 removals per year, the Obama Administration now has a legacy of over one million deportations. President Obama argues that Secure Communities has allowed his administration to focus on “dangerous criminal aliens” and thereby show mercy to long-time law-abiding immigrants with family ties to the U.S., but the statistics reveal that 30 percent of those removed through the program had no previous criminal history and 60 percent had only minor convictions or clean criminal records.

Ultimately President Obama commands a strong level of support among Latino voters and he is widely seen as being the better advocate among the two candidates for addressing immigration reform in a way that is favorable to the nation’s current undocumented population. He is likely to continue the Deferred Action for Childhood Arrivals process and ultimately parlay that arrangement into the DREAM Act or even a more sweeping reform of the immigration laws.

Gov. Romney has indicated that he would no longer accept new DACA applications after taking office, but he stated that he would not rescind previous grants of deferred action on the principle that he does not want to “take away something [applicants] purchased.” What is unclear is if this principle applies to pending applications at the time he (theoretically) takes office. Those applicants have also paid for fair consideration of their applications, but to date Gov. Romney has not made it entirely clear what would be fate of these applications.

In light of all this, DREAMers are watching anxiously as the election draws near. Will the current president show himself to be the champion they had hoped for four years ago? If he is unseated will it be by the harsh Gov. Romney from the primaries in early 2012 or will it be the kinder, gentler, consensus-seeking Gov. Romney campaigning in the general election? With so much in the air and so much at stake, DREAMers are watching with open eyes.

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Filed under Deferred Action for Childhood Arrivals (DACA), National News, Uncategorized, Undocumented Immigrants

Q and A with future Hispanic leaders

We were privileged to present at the 2012 Hispanic Youth Leadership Summit presented by the University of Nevada Reno’s Center for Student Cultural Diversity. We provided some basic information about the state of undocumented immigration today, what the DREAM Act is and would offer, and what the new Deferred Action for Childhood Arrivals process is. Our handout from the event is here.

We made time in our presentation to take questions from those present about immigration-related matters. Below are some of the questions with our responses:

What happens if I still don’t have the 4 years when I graduate from high school? Can I still apply for the DACA?

This is a common misconception that we have encountered. Deferred Action for Childhood Arrivals is only available if you can show that you entered the United States before June 15, 2007 and were physically present in the United States for the five years until June 15, 2012 and since August 15, 2012 with only short absences if any. If you entered the U.S. after June 15, 2007 you cannot qualify for DACA no matter how long you stay here.

Does the dream act work for a trade school or does it have to be for an actual college?

To qualify for DACA you have to have earned your high school diploma, GED, or certificate of completion OR you can have been discharged honorably from the U.S. military OR you can be enrolled in an education program that will lead to a GED or job placement. Full details are available at www.USCIS.gov/childhoodarrivals. A common misconception is that you have to remain in school to earn DACA. Continuing to attend school is only required if you did not finish high school or serve in the military. Enrollment in accredited trade and vocational schools can meet the “in school” requirement where it applies.

What can you do under the dream act? What privileges do you get?

Remember, DACA is not the same as the DREAM Act. The DREAM Act would put people on a path to Permanent Resident status and it would allow them to work, remain here with lawful status, and even travel. DACA is a two-year protection from deportation that does not create any new status. Travel may be permitted if you get approval for Advance Parole. DACA can end at any time and is only being discussed as a renewable two-year protection with work authorization.

What scholarships can I get once I have Deferred Action?

A grant of Deferred Action will not create new opportunities for federal financial aid. Individuals who are non U.S. citizens or Permanent Residents will not be put on a path toward such status simply by getting Deferred Action, and as such they will not be eligible for federal or state financial aid that is only available to those categories of individuals. Private scholarships and personal finances are still going to be key for DREAMers who want to continue their educations. Note also that the Millennium Scholarship is available to Nevada high school graduates who meet the requirements irrespective of immigration status.

If you get deferred action would it protect your parents or family? Is it good leverage?

Deferred Action only protects the grantee and does not extend to that person’s parents, siblings, spouse, etc. Undocumented individuals who have been in the United States for more than ten years may qualify to fight their deportation cases if they are placed in such a situation, and in this case having a child with Deferred Action might help as a small discretionary factor. But there is no formal or guaranteed benefit for the parents or family of a Deferred Action grantee.

Can kids fix their parents’ papers?

Again, having Deferred Action is not going to change a person’s parents’ status. A U.S. citizen who is at least 21 years old may file a petition for his/her parent(s), but this is just one step in a process toward lawful status. Many undocumented parents of U.S. citizen children must leave the United States for a consular interview and in so doing they trigger an automatic ten-year punishment that can only be overcome in certain circumstances.

What if Romney becomes president? What is his policy on this issue?

Governor Romney has indicated that he does not believe the Deferred Action was the right step for President Obama to take. He has indicated that he would end the program for new applications upon taking office in January 2013, but he has also said that he would not take away the “visa” [incorrect terminology, but he means the grant of Deferred Action] from those who have already “purchased” it. This leaves it unclear what he would do with applications pending at the time he takes office.

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Filed under Deferred Action for Childhood Arrivals (DACA), Immigrant Youth, Nevada News, Reno News, Uncategorized

USCIS provides monthly tallies of DACA case progress

Through its “Straight From the Source” publication and by other means, the federal agency U.S. Citizenship and Immigration Services (USCIS) is doing its part to sate the growing hunger among DREAMers to learn about how the agency handles applications for Deferred Action for Childhood Arrivals (DACA). USCIS has released two blocks of data on the progress of the process, although the figures mainly paint a portrait of a badly needed form of relief for the nation’s undocumented youth without offering a great level of detail.

In the first month of application acceptance 82,361 packages were accepted and by mid-September 29 individuals had been granted Deferred Action. The stats as released by USCIS are below:

Through October 10 USCIS had accepted 179,794 applications and granted Deferred Action in 4,591 cases.

DACA statistics through mid-October

A remaining unknown is what portion of cases are being denied or issued Requests for Evidence (RFEs). The USCIS data do not speak to this and so far we have had to rely on anecdotal evidence. Most cases seem to be advancing without RFEs, but this perception is also skewed by a strong selection bias: the community we hear from is made up mostly of AILA attorneys, BIA-accredited representatives, and the rest of the CLINIC network. Because we are hearing from a group of talented, cautious, thoughtful practitioners it is likely the case that we are hearing about RFEs less often than they are being issued overall.

For the most reliable guidance on DACA you should contact a CLINIC affiliate near you. Click here to review our DACA Applicant Guide in English or Spanish.

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Filed under Deferred Action for Childhood Arrivals (DACA), Immigrant Youth, National News, Uncategorized

Fiscal year 2012-13 opens with disappointment for immigrant families facing long waits

The federal government began its new fiscal year on October 1, 2012. This transition, both of new month and new year, has implications for a large portion of the family-based immigration system known as the Family Preference System. As we detail below, the new fiscal year opened on a disappointing note for many families hoping to be reunited with loved ones abroad such as spouses (2 years, 4 months of waiting for most countries), adult children (7 to 20 years delay depending on the country and other factors), or siblings (after 12 years for most of the world, 16.5 years for Mexico, and almost 24 years for the Philippines.)

If you are baffled by these absurd wait times you are not alone. We’ll try to explain these phenomena:

Applicants for family-based immigrant visas are broken up into two main categories: Immediate Relatives and Preference Immigrants. Immediate Relatives (IRs for short) are the parents, spouses, and unmarried children under 21 years of age of U.S. citizens (native-born or naturalized). IRs do not have to wait for a visa once they are petitioned for — as soon as the family relationship exists and is verified they can begin the process of applying for an immigrant visa. (Note: IRs are still subject to the grounds of inadmissibility, deportability, and other possible roadblocks. The difference is that they do not have to wait to find out about these problems).

By contrast Preference Immigrants are categorized into different groups such as F-1 (unmarried adult sons and daughters of U.S.  citizens), F-2A (spouses and unmarried children of Permanent Residents), F-2B (unmarried adult sons and daughters of Permanent Residents), F-3 (married sons and daughters of U.S. citizens), and F-4 (siblings of U.S. citizens). The good thing about being a Preference Immigrant is that you and your children and spouse (usually) can all be included under one visa and when your time comes your “derivative” relatives are eligible too. The bad thing is that the waiting times can be brutal.

Preference Immigrants are subject to annual caps on each of the above five types of visas which total 226,000 per year. Further, each country may have no more than 7 percent of the visas in a given category in a given year. As an example 65,000 of the total worldwide principal visas are allocated for the F-4 category, and no more than 4,550 of these visas may go to natives of the Philippines. Because there are many people in the United States who are of Filipino descent there are more than 4,550 F-4 petitions filed each year. As a result the leftover applications from one year automatically roll over into the next year and take up that year’s allocation of 4,550 visas. Over time we end up with one year’s applicants “cannibalizing” the visas for the next year or two and the line grows and grows and grows.

To illustrate this we look at the F-4 category for the Philippines in the Visa Bulletin for October 2012: for this month the Department of State (which controls the release of visas) is only processing visa requests made on or before February 8, 1989. That’s where we get the 24-year figure (difference between today’s date and the date currently eligible for a visa.) You can explore the rest of the Visa Bulletin to see how backlogged many other categories are.

The Department of State does its best to monitor supply and demand for immigrant visas and to predict which dates should be available for which categories. Sometimes (as in winter 2010-2011) it gets the dates wrong and the available dates jump backward after a few overly optimistic months, and the start of the new fiscal year is a time to recalibrate the system for the new year. A large portion of the immigrant community is watching anxiously for the F-4 category to creep beyond April 30, 2001 because many petitions were filed around this date to take advantage of a law known as Section 245(i). For these and many other families the slow progression of the dates in the Visa Bulletin is another reminder of how patient they must be in order to obtain the desired result from our outdated, confusing, and sometimes broken immigration system. We continue to watch optimistically for signs that our elected officials can find common ground and make some needed changes to this and other aspects of our immigration laws.

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Filed under Family-Based Immigration, National News, Uncategorized

Romney won’t take away DACA permits…Will he throw away DACA?

When the Obama Administration announced on June 15 that it would stop deporting certain young undocumented immigrants the response was as polarized as most other issues in today’s political arena. From the left came a hopeful sigh of relief — this is not the DREAM Act, but it is a step in the right direction and one that finally begins to deliver on the president’s lofty promises to the immigrant community. From the right came condemnation — this was a power grab, an overreach, an illegal “backdoor amnesty.”

While the usual cast of characters acted out the latest scene of political drama cautious immigration advocates tried to weigh costs and benefits and provide the best advice possible to their clients. Speaking as immigration advocates we can say that one of the greatest challenges presented by the new Deferred Action for Childhood Arrivals (DACA) process was the uncertainty of a controversial policy that existed only by decree — it represents no new law, regulation, or even executive order but simply an explicit policy choice and exercise of prosecutorial discretion. Complicating matters further, a presidential election is around the corner and a new man could be in the White House come January 2013.

In an interview with The Denver Post, Republican presidential candidate Mitt Romney addressed this issue. But his comments did not exactly paint a clear portrait of how DACA would fare under a president Romney. On the one hand, Romney said:

“The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I’m not going to take something that they’ve purchased…Before those visas have expired we will have the full immigration reform plan that I’ve proposed.”

On the other hand, these comments leave it unclear whether or not DACA applications would still be accepted once Romney took office. At a minimum it appears that Romney would not strip Deferred Action status from those already granted it. Conceivably he would also not direct his administration to deny otherwise meritorious applications (by the same “taking what you paid for” reasoning) pending at the time he takes office. But it remains open to interpretation whether or not his administration would continue accepting new DACA applications filed after he took office.

As the presidential debates unfold we may learn more about the fact of DACA in a Romney administration. And before long we will know if such a thing is a possibility at all.

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Filed under Deferred Action for Childhood Arrivals (DACA), National News, Undocumented Immigrants