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Deferred Action Status for Childhood Arrivals (Form I-821D)

Attorney Mitchell J. Cohen

Attorney Mitchell J. Cohen

Warns DHS “Childhood Arrival” Procedures are not Child’s Play: Hidden dangers await unsuspecting applicants.

DHS has unveiled a new process whereby certain individuals who entered the United States at a young age may be considered for “deferred action,” allowing them to legally live and work in the United States for a temporary period of time.

The rules appear deceptively simple. According to instructions accompanying Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” an applicant must meet the following criteria to be considered for the program:

1. Was under the age of 31 as of June 15, 2012.
2. Came to the United States before reaching his or her 16th birthday;
3. Have continuously resided in the United states since June 15, 2007, up to the
present time;
4 Was present in the United States on June 15, 2007, and at the time of making his or her request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012.
6. Are currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorable discharged veteran of Coast Guard or Armed Forces of United States; and
7. Has not convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Let’s look at items 1 and 2, which deal with proof of the applicant’s date of birth, and continuous residence in the United States since June 15, 2007. It may come as a surprise to learn that the DHS does not necessarily accept at face value the information that is on a birth certificate, especially in instances where there was a late-registered birth. DHS has also taken issue with documents from countries that it believes have a high propensity for document fraud. DHS has even been known to challenge a foreign national’s representation about his date of birth, to the point in some cases of subjecting detained individuals claiming juvenile status to forensic dental examinations to estimate the person’s age.

What about item 3, “continuously resided in the United states since June 15, 2007, up to the present time.” The phrase “continuously resided” has traditionally been a legal “term or art” in immigration law, which means that it has a meaning that is different from the ordinary everyday use of the phrase. “Continuously resided” in immigration law has meant that the foreign national has been “living” in the U.S., as opposed to “visiting” the United States. Physical presence, on the other hand, has generally been used in immigration law to refer to the actual place where you are physically situated, regardless of your intent to ultimately stay or leave. DHS has indicated that “brief, casual, and innocent” absences will not interrupt the period of continuous residence for the new deferred action program. The problem is that individuals who entered on visa categories such as B-1 or B-2 visitor visas and F-1 visas, at the time of their entry, legally had to have the intent to return to their unrelinquished foreign domiciles. If that visitor or student visa holder made multiple trips in and out of the United States on his visitor or student visa, each time he entered the United States he was necessarily representing to the immigration authorities that he was coming into the United States for a temporary purpose (not to reside permanently) and that he continued to have an intent to return to his home country.

A foreign national entering the United States on a visitor visa and may be allowed 6 months in that status. It is possible that an immigration officer may determine that the initial 6 months did not constitute time spent in continuous residence in the United States. What about the person who since June 15, 2007 traveled in and out of the U.S. on a visitor visa on multiple occasions, and then files a Form I-821D, claiming that he was actually continuously residing in the United States for the entire period of time. The question that the DHS may ask is: were you lying then, or are you lying now? Were you visiting the United States or were you actually living here? Possible result: denied I-821D application, and possible notation in that person’s immigration file of visa fraud.

Item 4 requires proof of presence in the United States on June 15, 2007. Many individuals who entered the United States without inspection as young people may not have been immediately registered in school. As a result, it may present a vast challenge to that individual to try to prove to DHS that he was physically present in the United States on June 15, 2007. DHS lists as possible secondary evidence affidavits from individuals aware of the applicant’s presence in the United States. In reality, DHS has a history of giving little or no credence to affidavits, in the absence of “hard evidence” of the applicant’s initial presence.

Item 5, requires that on June 15, 2012 the applicant has been in the U.S. without inspection or that his “lawful status” expired as of that time. “Lawful status” is another immigration law term of art, which has been the subject of much debate and repeated clarifications over the years. The issue of “lawful status” will be particularly tricky for individuals who were admitted to the United States for “Duration of Status.” The form documenting their DHS status (Form I-94), will not have an expiration date, but rather the notation “D/S” (for “duration of status”). F-1 visa students have a “D/S” notation on their I-94 cards. The date of termination of a student’s lawful status has been traditionally defined as when an immigration officer makes a determination in the student’s immigration file that the student has violated his student visa status. The problem is that the former student does not necessarily receive notification from the DHS as the determination that the student is not out of status.

Item 6, dealing with qualifying school or U.S. Armed Services history does not define what “in school” means. Does it apply to trade school? Does it apply to part-time study? What level of accreditation is required? As to the inclusion veterans of the Armed Forces, DHS is presumably aware that in order to enlist in a branch the U.S. Armed Forces, an individual must be a U.S. Citizen or Lawful Permanent Resident (green card holder).

Additionally, Section 329 of the Immigration and Nationality Act provides that an individual who is on active duty during times of declared hostilities or who was honorably discharged, having served during a period of declared hostilities, is entitled to expedited U.S. Citizenship. Since September 11, 2001, the United States has been in a continuous period of declared hostilities (the ongoing “war on terror”).

On to item 7, “significant misdemeanor” is clearly a subjective term. That ambiguity aside, however, there is a deeper problem that he not been explained to the general public by DHS.

The term “conviction” under Sec. 101(a)(48)(A) of the Immigration and Nationality Act is broader than the traditional criminal definition of conviction. In fact, I have seen many instances of foreign nationals caught completely by surprise when DHS arrests them and initiates removal proceedings against them, for judgments that they did not even considered to be criminal convictions.

For example, the person may have – on the advice of criminal counsel – pled “no contest” and received a “withheld adjudication” coupled with a fine or probation. He may have been advised that since the court did not “adjudicate” him “guilty” but instead “withheld” the adjudication, that no conviction resulted. In fact that individual may have been perfectly correct in telling a prospective employer that he was never convicted of a crime. Unfortunately, in 1996 the Immigration and Nationality Act was amended to expand the definition of “conviction” to include situations where the court withholds adjudication of guilt or suspends the sentence. Nowhere in the DHS’s instructions is this critical point made.

Not only do these individuals face receiving denials on their deferred action applications, they also risk being categorized as a “high priority” subjects for their arrest and deportation, depending on the nature of their criminal history.

Filing the innocuously-looking FormI-821D will be a process that is fraught with hidden perils. Individuals who have outstanding orders of removal, deportation or exclusion, whose applications are denied, face the possibility that DHS will execute the outstanding order and remove that person from the United States. Individuals who left the United States after an order of removal and then reentered the United States (generally within 10 years of departing) face felony prosecution for “criminal reentry.” The I-821D elicits all the necessary information needed for prosecution. An unwary applicant may very easily hand his head on a platter to DHS and to the U.S. Attorney’s Office for both prosecution and deportation.

The DHS has announced that there will be no appeal from a denial of the Form I-821D deferred action applications. This “one strike and you’re out” may seem incongruous with the Obama administration’s stated humanitarian goals of this deferred action program. The Form I-821D is one test that these students and former students cannot afford to flunk.

Mitchell J. Cohen, Attorney at Law
501 Golden Isles Drive, Suite 205
Hallandale Beach, FL 33009
Tel. (954) 457-1941

Mitchell Cohen is a member of the American Immigration Lawyer’s Association, with offices in Hallandale Beach, Florida.

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