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Lawsuit by ICE Agents is Latest in Anti-Immigrant Attacks

Only two weeks into the implementation of the deferred action program and amidst a spate of anti-immigrant attacks against it, a group of immigration officers has filed a lawsuit challenging the policy as unconstitutional.

The plaintiffs in Crane v. Napolitano are Immigration and Customs Enforcement agents who claim that the recent directives of the Department of Homeland Security command them to violate federal law and are a usurpation of the legislative power of Congress.

They challenge in particular the June 15, 2012 memo of Sec. Janet Napolitano on deferred action for childhood arrivals and the June 17, 2011 Morton Memorandum establishing enforcement priorities, which they had complained of earlier. The agents say that they are forced to violate their oaths of office and several laws, or be disciplined for doing their job if they follow federal law and disregard the directives.

In effect, they disagree with the President’s policy to deport criminals first before students and individuals who were brought into the U.S. as young children, so much so that they refuse to be bound by the policy and have chosen to bring this difference of opinion to the court.

Many legal observers believe that the lawsuit has no merit and that it would be dismissed on jurisdictional grounds.

The group’s legal costs are shouldered by the anti-immigrant organization NumbersUSA. The agents’ lawyer is Kris Kobach, whose name may sound familiar because he authored the infamous Arizona immigration law SB1070. He also advises GOP presidential candidate Mitt Romney on immigration.

One of the claims made by the employees is that federal law does not authorize deferred action, much less the granting of this benefit to 1.7 million potential beneficiaries.

But deferred action is not new. Widows of U.S. citizens have received deferred action from the USCIS, as do women who have suffered physical and mental abuse because of rape and domestic violence who are applying for a U visa. Foreign students who were affected when Hurricane Katrina hit the U.S. were able to get deferred action. Deferred action is also a form of relief that is available in removal proceedings, whereby the DHS agrees not to deport an alien or not to execute a removal order.

I myself have in the past helped obtain deferred departure status for hundreds of nurses who would otherwise have been deported because they failed their licensure exams or changed employers without authorization. The INS agreed to give them deferred departure status for a maximum of 3 years. Many of these nurses eventually regained lawful status.

This present lawsuit is just the latest onslaught against the program that grants reprieve from deportation to deserving individuals who are in the U.S. through no fault of their own. On the same day that the USCIS began accepting deferred action requests, the governor of Arizona issued an executive order denying state benefits, including driver’s licenses, from deferred action beneficiaries. Nebraska’s governor quickly followed suit and announced that his state would also deny driver’s licenses, welfare benefits and other public assistance to DREAMErs.

Elsewhere, there are reasons for DREAMers to remain optimistic. In New York, for instance, a lawmaker has introduced a bill that would give undocumented youth access to government financial aid for college. A Colorado university has started to charge a reduced tuition fee for eligible undocumented students. A federal court also recently blocked key parts of immigration laws of Alabama and Georgia.

No Need to File for Deferred Action in Haste

The USCIS began accepting applications for deferred action on August 15 after making the forms available on its website the day before. Meanwhile, DREAMers are turning out in large numbers, participating in community workshops and seeking legal assistance, in anticipation of submitting their requests for consideration of deferred action.

Since the USCIS is expected to be deluged with these requests in the coming weeks and months, some individuals may think that it is better to get ahead of the pack by filing their applications early.

But perhaps it is more important to get one’s application right than to just simply get it filed. Making sure that an application is complete will help prevent unnecessary delays. A carefully prepared application will also prevent denials in cases that would otherwise merit a grant of deferred action.

Another reason why an applicant should not hastily submit a request is the fact that the new process would not allow him to appeal a denial or to file a motion to reopen or reconsider the denial.

The deferred action applicant must make sure to submit evidence that he meets the key guidelines under the new process. Examples of documents to demonstrate eligibility were provided in the guidelines issued by the DHS a few weeks ago.

To prove identity, the applicant may submit a passport, birth certificate with photo identification, a school ID with photo, or a U.S. government immigration or other document with the applicant’s name and photo. To show that he came to the U.S. before age 16, the applicant can submit a passport with an admission stamp, Form I-94, an INS or DHS document stating the date of entry, U.S. school records, travel records and hospital records.

To prove physical presence as of June 15, 2012 and continuous residence since June 15, 2007, applicants may submit rent receipts, utility bills, pay stubs, school records, religious records, money order receipts, passport entries, birth certificate for children born in the U.S., dated bank transactions, Social Security cards, car license receipts or registration, rental agreement contracts, tax receipts and insurance policies.

A final order of exclusion, deportation or removal and an I-94 with an expired date of authorized stay may be used to demonstrate that the applicant lacked lawful status as of June 15, 2012. School transcripts, report cards, high school diploma or GED certificate will prove the applicant’s student status as of the time of the request.

It is still unknown how long USCIS will take to process each application. If an applicant’s submitted documentation is insufficient, the USCIS may send him a request for evidence or ask him to appear at a USCIS office. The adjudication process also involves biographic and biometric background checks as well as supervisory review.

After deferred action is granted, the applicant may apply for advance parole if he wants to travel outside the U. S. He must file Form I-131 Application for Travel Document and pay the $360 filing fee. Generally, advance parole will be granted if the travel is for humanitarian, educational or employment purposes. Form I-131 cannot be filed concurrently with the deferred action request.

Those whose cases have been deferred under this process but already have a final order of removal may also request advance parole. However, if advance parole is granted the applicant must first reopen the case and obtain an administrative closure or termination before traveling outside the U.S.

The guidelines provide that it will be possible to apply for the extension of the period of deferred action. The applicant would also have to request an extension of his employment authorization. Even individuals who have turned 31 years old can request an extension as long as they were not above age 30 on June 15, 2012.

USCIS Begins Accepting Deferred Action Requests

The USCIS has released the forms for requesting deferred action and started accepting applications from DREAMers who are referred to under the policy as childhood arrivals.

The request is made on Form I-821D Consideration of Deferred Action for Childhood Arrivals and is submitted with evidence that the applicant meets the key guidelines under the new policy.

The applicant must also submit Form I-765 Application for Employment Authorization and establish economic necessity by giving information on current income, annual expenses and total value of assets in the worksheet (Form I-765WS). There is no filing fee for Form I-821D but the applicant must pay the filing fee for Form I-765 which is $380 plus $85 for biometrics, or a total of $465.

The agency is predicted to be flooded with requests in the coming weeks. A research organization estimates that there are 1.2 million foreign-born individuals in the United States who are already eligible to apply for deferred action, with half a million more becoming eligible to apply in the coming years.

But although these individuals may be eligible, most of them will naturally weigh the pros and cons of applying for deferred action. They know, or ought to know, that deferred action is only a reprieve from deportation and does not lead to a green card or citizenship. They may be afraid of affirmatively requesting an immigration benefit after years of keeping their status a secret from everyone but their closest family and friends. Many of them are aware that since this new process is the initiative of President Obama, the elections present some uncertainty on the program’s future.

At the same time, these individuals know the tremendous advantages of being granted deferred action. They would no longer fear deportation during the period of deferred action. They would be eligible for employment authorization, which if granted makes them authorized to work and allows them to get a Social Security number and a driver’s license. They know that it paves the way for many other things, including a college education and a career.

The guidelines issued by the DHS as well as information campaigns launched by many organizations should help address their fears. For instance, the DHS has said that information in the request would be protected from disclosure from the agencies in charge of enforcement.

However, individuals who have a criminal history or who have committed fraud or misrepresentation should be particularly careful in deciding whether to apply for deferred action.

Someone who has had a brush with law enforcement should be cautious. For example, according to the guidelines a minor traffic offense such as driving without a license is not a misdemeanor under the process, but the applicant’s entire offense history would be considered to determine if his case warrants the exercise of discretion. On the other hand, if the traffic offense is driving under the influence, it is considered a significant misdemeanor and a conviction will disqualify the applicant.

But just because an individual has a criminal conviction does not necessarily mean that he should forget deferred action altogether because sometimes it is possible for a conviction to be expunged. The guidelines say that expunged convictions and juvenile convictions do not automatically disqualify the applicant. There might be a way for the individual to reopen the criminal case and apply for post-conviction relief.

Applicants should be careful in completing their request and accompanying documentation. The guidelines warn that applicants who commit fraud face possible criminal prosecution and deportation. With the assistance of a lawyer or a reputable non-profit organization, an applicant would be a lot less likely to submit inaccurate or incomplete applications and unnecessary delays would thereby be avoided.

Even though the application forms look easy to fill out and the guidelines simple enough to understand, immigration rules and procedures are complicated and the results of the filing could be serious and long-lasting.

Guidelines for Requesting Deferred Action

Details of the process for requesting consideration of deferred action were finally released by the Department of Homeland Security (DHS) on August 3, 2012. The guidelines, published in a question and answer format, answers many questions regarding the process announced by President Obama less than eight weeks ago.

In order to clarify certain issues that the public may have regarding this process, some of the important items in the guidelines are repeated or summarized below.

Q: How does an individual who came to the United States as a child request consideration of deferred action?
A: The request will be made on a form that will be on the USCIS website on August 15, along with a form requesting employment authorization. The total filing fee is $465. Requests may be filed with the USCIS no earlier than August 15, 2012.

Q: Will information given in the request for consideration of deferred action be confidential?
A: Yes. The guidance clarifies that information given in the request is protected from disclosure to the enforcement arms of the DHS, including the U.S. Immigration and Customs Enforcement (ICE). Individuals whose cases have been deferred under this process will not be referred to ICE.

However, this protection does not apply if the requestor commits fraud or has a certain type of criminal history. USCIS guidance requires the issuance of a notice to appear or referral to ICE in certain circumstances, such as when there is a statement of findings substantiating the fraud, or when an alien is an egregious public safety case.

The guidance itself states that if the alien knowingly makes a misrepresentation or fails to disclose facts in order to obtain deferred action or work authorization, he would be treated as an immigration enforcement priority and subjected to criminal prosecution and/or removal.

Q: If the request is denied, will the alien be placed in removal proceedings?
A: If the case does not involve a criminal offense, fraud or threat to national security or public safety, it will not be referred to ICE for removal proceedings, except if the DHS finds that there are exceptional circumstances.

Q: Will dependents and relatives of the requestor benefit from this process?
A: No. Immediate relatives or dependents of childhood arrivals may not be considered for deferred action under this process unless they independently satisfy the guidelines.

Q: What are the key guidelines that must be met to be considered for deferred action?
A: To be able to request consideration of deferred action, the requestor must meet the following: be under the age of 31 as of June 15, 2012; came to the U.S. before his 16th birthday; continuously resided in the U.S. since June 15, 2007 up to the present; physically present in the U.S. on June 15, 2012 and at the time of making the request; entered without inspection before June 15, 2012 or lawful immigration status expired as of June 15, 2012; currently in school or has graduated or obtained a certificate of completion from high school, or obtained a GED certificate, or was honorably discharged from the U.S. Coast Guard or Armed Forces; and has not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Q: How old must the requestor be in order to be considered for deferred action?
A: The alien must be at least 15 years old at the time of filing, unless he is in removal proceedings or has a final removal order or voluntary departure order, in which case the request may be filed even if he is under the age of 15.

Q: If an individual is currently in a nonimmigrant status (e.g., F-1 or H-4), can he request consideration?
A: No. Only those who currently have no immigration status and were not in any lawful status on June 15, 2012 are eligible to request consideration.

Q: Is expedited processing available?
A: No. There is no expedited processing for deferred action, so promises by unscrupulous practitioners or consultants for faster service upon payment of a fee may be fraudulent.

Q: If a case is deferred, does the individual obtain lawful status?
A: No. The guidelines reiterate the grant of deferred action will not confer any lawful status or provide a path to permanent residence or citizenship.

Q: Does the individual incur unlawful presence during the period of deferral?
A: No. If one’s case is deferred, the requestor will not accrue unlawful presence during the period of deferred action. However, it will not excuse previously accrued unlawful presence and, unless the requestor is under 18 years of age at the time of the request, unlawful presence will continue to accrue while the request is pending.

Q: If the request is denied, can the decision be appealed?
A: No. A motion to reopen or reconsider or an appeal is not available if the USCIS denies the request. USCIS will not review its determination except in two circumstances: if the denial was due to abandonment but the requestor responded timely to a request for evidence, or if the USCIS has a record of the requestor’s new address but it sent the RFE to the wrong address.

Pointers for DREAMers as they Get Ready for Deferred Action

As the Department of Homeland Security is set begin implementation of the deferred action application process, undocumented individuals who came to the U.S. at a young age, commonly referred to as the DREAMers, should complete collecting documents to support their application. At the same time, however, they must be wary of immigration scams.

These DREAMers must document their history in the United States – their date of entry, physical presence, continuous residence, and educational history – in order to present as complete and strong a case as possible. Financial records, medical records, school records, employment records and military records may be used to prove one or several criteria.

Documents that may be useful include immigration records, I-94 cards, driver’s licenses, birth certificates of the applicant and any children born to him/her in the United States, marriage certificates, utility bills, tax returns, lease agreements and rent receipts, dated photographs, bank statements, cancelled checks, diplomas and transcripts.

Individuals who have a criminal history might be found ineligible and be subjected to deportation proceedings so if an applicant has a criminal conviction, he/she should obtain a certificate of disposition from the court and seek legal advice before applying for deferred action.

Prospective applicants should watch out for notarios and unscrupulous consultants who promise that they can already start the application upon payment of a fee. Until the details of the application process are made public, a request for payment of application or filing fees may be fraudulent. The new policy is not an amnesty and promises of a green card or path to U.S. citizenship are false.

Only qualified lawyers can give legal advice and not notarios or notary publics, so make sure that your lawyer is a member of the state bar association before using his/her services.

In the days leading up to the announcement of the application procedure, more and more stories of immigration fraud become exposed. For example, there have been reports that a scam artist had been calling immigrants and identifying himself as a USCIS officer. He/she would ask for certain data such as the I-94 number and the “A” number and, supposedly in order to rectify a discrepancy with their records, ask for money to be wired via Western Union.

To avoid being the victim of immigration fraud, everyone must be alert and proactive.
Many references are available online to help prevent immigration fraud, such as the U.S. Federal Trade Commission (FTC) which has a dedicated site at, and the American Immigration Lawyers Association-sponsored website Those who believe that they were the victim of immigration fraud must report it to the FTC.

The new policy announced by President Obama last June is expected to spare some 800,000 individuals from deportation. Under the June 15, 2012 Memorandum, certain immigrants will be eligible for administrative relief in the form of deferred action for two years, subject to renewal, and eligibility for employment authorization.

Deferred action refers to the discretionary determination to defer removal action against an individual as an act of prosecutorial discretion. It does not grant legal immigration status. The memorandum stated that the federal government would create a process for the application in sixty days.

To be eligible for deferred action, the following criteria must be met: (1) applicant came to the United States under the age of 16; (2) continuous residence in the U.S. for at least 5 years prior to June 15, 2012; (3) currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; (4) not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety; and (5) age 30 or below.

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