Do I really need an attorney for deferred action for childhood arrivals (DACA)? Part I

On June 15, 2012, the Obama Administration announced a new policy of Deferred Action for Childhood Arrivals, which is now being referred to as “DACA.” Additional guidance, and a DACA application form (I-821D) were issued on August 14, 2012, and DHS began accepting DACA applications as of August 15, 2012.

Under this program, the government will defer, or not seek to deport/remove, certain individuals who were brought to the US at a young age. The basic eligibility requirements for applicants are:

1. Was under the age of 31 as of June 15, 2012, meaning was born on or after June 15,1981;

2. Came to the US before reaching his or her 16th birthday, meaning they were 15 or younger when they came to the US;

3. Arrived in the US no later than June 15, 2007 and continuously resided in the US through June 15, 2012, meaning the person resided in the US for at least five years before June 15, 2012;

4. Was physically present in the US on June 15, 2012, and at the time of making a request for consideration of deferred action with USCIS;

5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012, meaning they snuck across the border or were out of status as of June 15, 2012;

6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the US;

7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

If deferred action is granted, the person can obtain work authorization and may be able to travel outside the US (advance parole).

The USCIS has a special form for DACA applicants (I-821D), which can be submitted starting August 15, 2012, along with documentation supporting the person’s DACA eligibility. I know that many people may be asking themselves, “Do I really need an attorney to help me apply? Or can I just do it myself, and see what happens?”

While people can certainly prepare and file their own immigration petitions, applications, appeals, etc. on their own (including a DACA request), there are several things to consider, in connection with the decision to hire an attorney:

• An attorney can help you gather and assemble the necessary documents establishing your eligibility, proving, among other things, your physical presence in the US on June 15, 2012; five years of continuous residence in the US, since June 2007, etc. I know that USCIS has already listed some of the types of documents that can be submitted to establish eligibility, such as financial records, school records, etc. You want to make sure that you are submitting correct and verifiable documentation, and that you do not inadvertently submit documentation that may not necessarily be helpful to your case. (In the past, there were other immigration programs requiring a person to establish eligibility, and people would submit fake, manufactured, or simulated documents, which USCIS (or INS) later found to be bogus. So USCIS will be on the lookout for questionable documents. Any fraud in applying could result in instant denial and possible referral to ICE for removal.)

• You cannot file an appeal or motion to reopen or reconsider if your DACA case is denied (except if your case was denied for 1). Failing to respond to a Request for Evidence (RFE) but you have proof that you had timely responded, or 2). If an RFE was sent to the wrong address.) Thus, it would seem that a request for deferred action is a one-time, one-shot filing. If you do it on your own, and get it wrong, and the case is denied, you may not then be able to undo the damage, because you had used up your one chance. I know that many people think to themselves that they will try it on their own, and if the case is denied, they go to an attorney, to repair the damage. But, as you can see, USCIS is saying that except in two very limited circumstances, you cannot appeal. 

 If you believe you are eligible for DACA, you should definitely seek the advice and assistance of an attorney to make sure you are eligible, and to increase your chances of success. In a future article, I will discuss more reasons why you should consider hiring an attorney in connection with preparing and submitting your DACA request.

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