Things to Talk With Your Attorney About Before Filing for the DREAM Deferred Action Program

On August 15, 2012, USCIS began accepting applications for Deferred Action as a Childhood Arrival. While this program is not the actual DREAM Act, it is a substantial step forward in the way of immigration reform by providing two year protection from deportation/removal (as well as work authorization) to individuals who entered the United States before the age of 16 and satisfy the criteria laid out in Department of Homeland Security Secretary Janet Napolitano's June 15 Memo and subsequent guidance from USCIS. However, before applying, potentially eligible individuals should understand and realize that a grant of deferred action is not automatic. It is a discretionary "determination to defer removal action of an individual as an act of prosecutorial discretion." In other words, the fact that an individual can furnish documentary proof that he/she meets the guidelines is no guarantee that a grant of deferred action will be granted. More importantly, there may be underlying issues or circumstances that may be barriers to approval. Just as an example (note: this list of troublesome scenarios only touches the surface, and is by no means a complete or exhaustive list), you might want to seriously consider consulting with an attorney if you have ever worked with a false social security number; claimed to be a United States Citizen; left and re-entered the United States; entered the United States fraudulently; or have ever been arrested, even as a juvenile. Additionally, if you have ever applied for anything with immigration or been involved in immigration court, it is important to advise your counselor. If your case was denied, for example, due to fraud, it is especially important to seek legal advice. USCIS has announced that in general, information disclosed during the Deferred Action application process will not be shared with ICE. However, if during the process, USCIS discovers criminal offenses, evidence of fraud, or determines that the applicant poses a threat to national security or public safety, all bets are off. Under those circumstances, your case may be referred to ICE for potential issuance of a Notice to Appear in Immigration Court for Removal Proceedings. Additionally, eligible applicants need to be aware that there is no appeal process should USCIS decline to grant Deferred Action. An application may be denied for any number of reasons, not just for substantive legal issues summarily touched on above. A case could theoretically be denied for failing to furnish enough information or answering a question incorrectly. Given the innumerable ways in which a case could go wrong, applicants should, at the very least, understand what they are getting into before rushing to file.