By Jennie Guilfoyle
On June 15, 2012, President Obama announced that DHS would be exercising its prosecutorial discretion in a new way: by granting deferred action to young people who came to the U.S. before June 15, 2007, who were under 16 when they came to the U.S., who had finished high school or been honorably discharged from the military, or were currently in school. Deferred action, while not itself a lawful immigration status, nonetheless grants a reprieve from deportation, and just as importantly, the possibility of applying for work authorization. The program, known as “Deferred Action for Childhood Arrivals” or DACA, opened for applications only 60 days later, on August 15, 2012.
CLINIC affiliates across the country responded to the challenge, with staff learning quickly about the new program and setting up workshops and screenings for this new program. By some estimates, there are more than a million young people potentially eligible for DACA, so there is a vast amount of work to be done in reaching out to and serving them.
As a way to support our network in DACA work, CLINIC created an affiliates-only DACA email listserv, the first CLINIC-created listserv. The listserv, called CLINIC-DACA, is open to staff at all CLINIC member and subscriber agencies and allows them to exchange ideas and thoughts on DACA implementation. There are currently 168 members of the listserv. If you are interested in joining, click here: http://groups.yahoo.com/group/CLINIC_DACA/join . This article will summarize the information CLINIC affiliates across the country have gathered so far as they tackle implementation of this new program.
On October 12, USCIS published initial DACA adjudication and receipt data, which indicated that the agency had received close to 180,000 applications and had approved about 4,600. We expect new data to be published soon, and based on what advocates around the country are reporting, we expect that both the receipt and approval numbers will be significantly higher.
Organizations around the country are reporting their first wave of DACA approvals, including affiliates in the following locations: Homewood, AL; Santa Rosa, CA; Washington, DC; New Albany, IN; Alexandria, LA; St. Louis, MO; Omaha, NE; Dallas and Houston, TX; and Green Bay, WI.
Requests for Evidence
Some affiliates have reported receiving Requests for Evidence (RFEs) in DACA cases. Most appear to be looking for more evidence of continuous presence in the U.S., and are similar to this poster’s experience:
“Thus far, we have one RFE: they primarily cited “gaps” in the continuous presence (although, we did have summary documents that listed each year) and wanted to know if the person’s passport was issued in the home country or in the U.S. (although, the passport does indicate the place of issuance, but, is in Spanish and abbreviated). We are able to get additional evidence and a letter from the consulate, so, we are all set for now.”
Issues CLINIC Affiliates are Seeing
CLINIC affiliates have dealt with a range of issues already in DACA cases, including issues around how young people entered the U.S.; what to do about young people who have used false Social Security numbers; how and when to disclose juvenile offenses; problems accessing GED programs; and establishing economic necessity to work.
The I-821D, the DACA application form, asks applicants to list their “status at entry.” Many potential DACA applicants have entered the U.S. with false documents: either a false passport and visa from another country, or a false U.S. passport. Advocates have wondered how to answer the I-821D question about manner of entry – should advocates disclose the use of false documents to enter the U.S., and if so, what are the ramifications of that? CLINIC prepared the following answer to this in an FAQ that was recently posted on our website:
It is unclear how the Service will treat entry to the United States through fraud or misrepresentation. While the grounds of inadmissibility do not apply, the agency can and certainly will take this into consideration when deciding whether to exercise its discretion favorably and grant deferred action. It is important to consider the different types of fraud separately, since they carry different consequences. Let us examine three possible scenarios and provide some suggestions on how to complete the forms based on what type of fraud was committed: (a) entry with a false nonimmigrant visa or one obtained by fraud; (b) entry with a fake LPR card; and (c) entry with a false claim to US citizenship.
Both the Form I-821D and the I-765 ask similar but slightly different questions on “status” and “manner of last entry.” So while the answers to those questions will likely be the same, it will not necessarily be the case. Also, one does not necessarily have to use the drop-down menu on the I-821D for Part 1 question #15. In fact, one of the proposed answers (No Lawful Status) is not even included in the drop-down options. So the applicant is free to write in a response if he or she did not enter with a specified nonimmigrant classification. One of the drop-down options is “suspected document fraud.” This option makes no sense. The applicant will almost certainly know whether he or she committed document fraud; it is the government that may harbor suspicions. So we never recommend that the applicant select that option.
a) Entry with a false nonimmigrant visa or one obtained by fraud. First, a false statement or the presenting of a false document is only fraud if it is knowing and willful. Children who entered the United States when they were quite young (certainly age 10 or under) can make a convincing argument that they were too young to understand the legal significance of their statements or actions. Children between the ages of 10 and 15 may also be able to make those same arguments. Factors that the Service or consulate has looked at include the child’s maturity, sophistication, prior criminal activity, and whether the child was being assisted by someone or was entering alone.
If the applicant entered with someone else’s nonimmigrant visa or one that was bought (a fraudulent one), we recommend that the applicant answer question #15 on the I-821D by stating “no lawful status.” Answer “yes” to question #16a if the applicant received an I-94. List the I-94 number on #16b. Indicate the date the I-94 expired on #17. For question #14 on the I-765, answer “manner of last entry” in the same way. Answer #15, “current immigration status” as “DACA requester” or “no lawful status.” Since there is an apparent contradiction with receiving an I-94 when the applicant had no lawful status, we recommend you explain the circumstances in Part 7 of the I-821D, Additional Information.
If the applicant obtained a nonimmigrant visa or border crossing card from the consulate, although based on a misrepresentation, answer question #15 on the I-821D by stating “B-1/B-2” or whatever their nonimmigrant visa classification was. The same would be true if the applicant entered on a border crossing card knowing they planned to overstay and/or work. That was their immigration status at the time of entry, even though the admission was obtained through fraud. If they received an I-94, complete questions #16-17 on the I-821D and #15 of the I-765 in the same manner as above. The possible fraud issue does not come up because the forms do not inquire as to whether the nonimmigrant visa or admission was obtained through a misrepresentation.
If the applicant entered on a fraudulent visa and their I-94 had not expired before June 15, 2012, we believe there is an argument that they still qualify for DACA. Since they had no lawful status at the time of entry, they had no lawful status on June 15, 2012. The eligibility requirement is that the lawful status must have expired by that date, so it is unclear whether the Service will agree with this interpretation. If the applicant left the United States after June 15, 2007, it may be that a return with a fraudulent visa will defeat the absence being considered “innocent.” The age of the applicant at the time and whether he or she was an active participant in procuring the fraudulent visa would likely be considered.
b) Entry with a fake LPR card. This scenario is probably less common, but it could arise. Since question #15 on the I-821D asks for status at entry, we believe the proper answer is “no lawful status.” Leave #16a, 16b and 17 blank. We do not believe it is necessary to admit to entry with a false LPR card. If you do not agree or are uncomfortable with this interpretation, then in Part 7, explain any ameliorative circumstances at the time of admission, such as age, ignorance or lack of participation in the fraud, or flight from violence or persecution. For question #14 on the I-765, manner of last entry, put the same. For question #15, current status, put “DACA requester” or “no lawful status.”
c) Entry with a false claim to US citizenship. This type of fraud is more serious. False claims of citizenship, if made after September 30, 1996, trigger a non-waivable ground of inadmissibility that could make the client permanently inadmissible. If the applicant gained entry to the United States through a false claim of citizenship, analyze the facts to see if an argument could be made that the claim was not knowing and willful (child’s age, maturity, and participation in the fraud). If the applicant wishes to proceed, for question #15 on the I-821D write “no lawful status” or “entry without inspection” False claims of citizenship are treated as entries without admission under a Supreme Court case.
Some practitioners might take the position that one does not need to explain anything further. Others believe it would be necessary to explain in Part 7 how the applicant entered and why it should not be considered a false claim to citizenship. If there were no ameliorative circumstances and it was clearly a false claim of citizenship, it would not automatically bar the applicant from receiving deferred action, since the grounds of inadmissibility do not apply. However, this admission of false claim would be on the applicant’s record and could preclude him or her from receiving any future immigration benefit where the grounds apply. The answer to question #14 of the I-765, manner of last entry, should be consistent with question #15 on the I-821D. For #15 of the I-765, current status, put “DACA requester” or “no lawful status.”
Social Security numbers
Many DACA applicants, like many other undocumented non-citizens, have used Social Security numbers that were not their own. Advocates in the CLINIC network have wondered whether or not to disclose those SSNs on the DACA application forms; and whether or not to present supporting documentation that lists those SSNs.
The USCIS recently answered the first question in an FAQ posted on their website. Question #9 on the I-765 asks for “Social Security Number (include all numbers you have ever used) (if any).” The USCIS said “list those Social Security numbers that were officially issued to you by the Social Security Administration.” Part 1 question #5 on the I-821D asks for “U.S. Social Security Number (if any).” The applicant should answer this in a similar manner. In other words, if he or she was not issued a valid SSN from the SSA, leave that question blank on the I-821D; put “none” on the I-765.
The USCIS answer is consistent with the advice of practitioners, who for years have been counseling their clients to put “none” when responding to questions on immigration forms that request a Social Security Number (SSN). The legal rationale has been that the term has been defined in Social Security law to mean a number issued by the Social Security Administration to an applicant. Practitioners have interpreted that question as asking for legitimate numbers issued to the applicant. The language on the I-765 has not changed in ten years, except to add the second parenthetical, “if any.” Therefore, the first parenthetical, “include all numbers you have ever used,” does not change that interpretation or make it harder to answer “none.” One may qualify for more than one legitimate SSN at different times (e.g., victims of domestic violence qualify for a different number), which could explain this parenthetical.
If the applicant is relying on documentation to establish residence or entry, such as school or employment records, that contain a fake SSN, then they should still not list fake SSNs on the I-765 or I-821D. CLINIC does not recommend redacting the SSN on school or employment records as that would only call attention to the issue. Optimally, the applicant should use documentation that does not contain fake SSNs. For example, obtain a separate letter from the employer listing the date of hire and period of employment.
Remember as well that representing a number to be a valid SSN when it is a fictitious number or belongs to another person is a felony under 42 USC § 408(a)(7), punishable by a maximum five years in prison and a $5,000 fine. If such representations are made to a federal agency, that is a separate violation under 18 USC § 1001.
Advocates have raised questions about whether or not they must disclose juvenile delinquency dispositions in DACA application. While juvenile delinquency dispositions do not bar an applicant from receiving DACA, remember that these dispositions can and will be considered as discretionary factors. USCIS will perform background checks on all applicants that will very likely uncover juvenile dispositions. Therefore, advocates should examine each case in which there is a juvenile delinquency disposition carefully in order to determine whether or not the applicant should file for DACA. If you do decide to file a DACA application for someone with a juvenile record, it is prudent to disclose the client’s juvenile history, so that you can frame it within a positive overall picture, possibly including other documentation that presents positive equities for the client.
Because enrollment in a GED program is one of the ways to satisfy the DACA education or military requirement, many programs are seeing clients who want to register for GED programs, including some who have trouble enrolling. One advocate wrote on the listserv about a deaf client whose limited English made it hard for her to access GED programs. Other advocates wrote with the following suggestions:
“I actually had a deaf DACA client who is, as a matter of fact, attending Gallaudet University’s alternative high school for the deaf in DC. They seem to have a great program and would probably be helpful in locating resources in your area. Or, you could try some of the national advocacy groups serving deaf and hearing-impaired to see what they might be able to suggest. I think a google search could locate those groups fairly easily.”
“I have a hearing impaired client, who is currently enrolled in the Alabama Institute for Deaf and Blind. Have you contacted the Dept. of Postsecondary Education of AZ to see if they have any resources for the hearing impaired?”
EADs and Standard for Economic Necessity
DACA applicants are required as part of their applications to submit an I-765 application for work authorization. The category under which they apply, as non-citizens granted deferred action, requires under the regulations a showing of “economic necessity for employment.” Advocates have wondered what is needed to make this showing, and whether it might be possible to file a DACA application without an I-765. At the USCIS Ombudsman’s Conference, held on October 2nd in Washington, DC, USCIS officials explained that they see the Employment Authorization Document (EAD) as an essential document for DACA grantees, for identification purposes as much as employment authorization, and that they do not foresee allowing applicants not to file an I-765. They articulated a broad standard for the “economic necessity” showing, and it does not appear that USCIS is looking to deny an EAD to anyone who can make any argument as to a need for a work authorization document.
The I-821D, the application form for DACA, asks applicants to list their current address, and “to the best of your knowledge, the addresses where you resided since your initial entry into the U.S.” For applicants who have moved often, especially those who have lived in the U.S. far longer than the five years required for DACA, and who may have moved here as young children, it can be quite challenging to track down this information. One affiliate has addressed this problem this way: “We have also run into applicants who struggle to remember addresses. We had applicants call family or those they lived with since arriving in the U.S. With a few phone calls they were able to figure out at least most of the address information (street, city, state).” Remember that the instructions do say “to the best of your knowledge,” and that it is time spent residing in the U.S. since June 15, 2007 that is most crucial for DACA.
Importance of Screening for Other Forms of Relief
DACA presents a unique opportunity to encounter and screen thousands and thousands of young people who might otherwise not have sought immigration legal counsel – and some of whom are eligible for relief more permanent than DACA. Advocates have already found that when they screen for other forms of relief, they discover that some young people are eligible for relief like Special Immigrant Juvenile Status (SIJS), a form of protection for young people who have been abused, neglected, or abandoned by their parents – and which leads to LPR status. Or they discover the client is eligible for U nonimmigrant status for victims of certain serious crimes who have cooperated with law enforcement – and which also leads to LPR status. Other possible forms of relief for young people include asylum; T status for victims of human trafficking; VAWA and family-based immigration; NACARA; and even citizenship – there may be some would-be DACA applicants who are not aware that they acquired citizenship at birth or derived it from an LPR parent who naturalized.
Because all of these forms of relief are stronger and more permanent than DACA, and because many of them have deadlines for applications, it is imperative that advocates screening DACA applicants screen for other possible remedies.
Some possible general screening questions might include:
- Why did you leave your country?
- Where are your parents?
- What are your parents’ immigration statuses?
- Have you ever been abused by anyone?
- Have you ever been the victim of a crime?
DACA Going Forward
Now that President Obama has been re-elected, we can expect the DACA program to continue for the foreseeable future. Advocates expect that many potential applicants who chose not to file before the election will now come forward to file, so programs may see a surge in new interest. USCIS continues to increase its capacity to handle DACA cases, with more resources devoted to adjudicating DACA cases. We also expect that USCIS will update the DACA FAQs on its website in the near future.