USCIS to Start Accepting DREAMer Childhood Arrivals Deferred Action Applications on August 15, 2012

The third time is the charm: after cancelling two previous stakeholder phone calls with immigrant advocates and immigration defense lawyers, DHS yesterday announced concrete plans for Pres. Obama’s DREAMer Deferred Action Program, now called “Deferred Action for Childhood Arrivals“. The announcement lays out eligibility requirements for the two-year work permit program as well as procedures to file the application.

For undocumented immigration youth, there is a lot to like about the August 3, 2012 announcement, which is more generous than DHS’s original June 15, 2012 draft.

Some highlights:

• Clarification that DREAMers who are 30 years old can also apply.
• A process for immigrants holding Deferred Action to apply for a travel permit (advance parole) to travel out of the United States for humanitarian, educational, and professional purposes.
• Detais on how to apply for a fee waiver for immigrant youths unable to afford to announced $465 fee.
• Clarification of the rule requiring continuous residence since June 15, 2007.
• Placing clearer limits on criminal convictions and misdemeanors that would bar applicants from Deferred Action. The significant misdemeanor bar has been clarified and disqualifying offense significantly limited, to the benefit of many potential applicants. Specifically, a significant misdemenaor is:
• Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
• If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

So for instance, a DREAMer with a simple misdemeanor drug possession conviction with a sentence of 90 days or less would seem to fall outside the significant misdemeanor bar.

Also, as a slap against the anti-immigrant Arizona, Alabama, and Georgia SB 1070-type laws, violation of state immigration-related offense will not count. Expunged conviction and juvenile convictions apparently will not be treated as “convictions” but will be looked at on a case-by-case basis.

• Use of application information to deport immigrants who do not qualify for Deferred Action. According to the DHS Deferred Action announcement, “If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.”
• Standing squarely behind passage of the DREAM Act. The announcement further states, he Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.”

There is a lot to like about the policy. However, the disqualification of any Deferred Action applicant who has ever been convicted of a DUI no matter how long ago makes no sense, given the reasoned consideration given to other misdemeanor offenders who received sentences of 90 days or less. A more reasoned approach would be to require a rehabilitation or probationary period for the applicant to show that he has learned his lesson about driving while intoxicated.

Our San Jose and San Francisco immigration attorneys will continue to monitor and analyze Deferred Action developments closely, and post updates as they appear.