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Deferred Action ("DREAM ACT") Guide

Posted by attorney Kapesh Patel

Following President Obama’s directive, the Secretary of Homeland Security, Janet Napolitano, issued guidelines on June 15, 2012 for a new program to provide temporary relief from removal proceedings for certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria. Known commonly as the “Dream Act", but officially as “Deferred Action for Early Childhood Arrivals", this remarkable program offers relief from deportation for certain individuals meeting several requirements.

Beginning August 15, 2012, individuals will be able to submit applications to the USCIS to apply for deferred action or the “Dream Act". Individuals seeking this relief will have to meet several requirements in order to be eligible for this program, specifically they must:

  1. Have come to the United States under the age of sixteen;

  2. Have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;

  3. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

  5. Were under the age of 31 as of June 15, 2012.

  6. Are between the ages of 15 and 31 (exception available to those under 15 who are in removal proceedings).

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. The preparation of your documents is imperative, even the smallest error(s) can result in a denial with no possibility of appeal. A licensed attorney can help you determine what evidence is relevant, the strength of your documentation, and prepare a thorough package that will put your application in the most favorable light.

Of all questions I've been asked, perhaps the one concerning an applicant's criminal background has caused the most confusion. If you have been convicted of a felony, a significant misdemeanor, or 3 or more other misdemeanor offenses not occurring on the same date and not arising out the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process, except where DHS determines there are exceptional circumstances.

Now what is a significant misdemeanor? For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is less than one year, but greater than five days) and meets the following criteria:

Regardless of 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 (DUI/DWI); 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.

Furthermore, to be eligible for this program, you will likely be in an unlawful status. There are a lot of questions and uncertainty regarding this program and how it is going to be implemented. For example, by revealing sensitive information about yourself to the government, could you be inadvertently giving information to the government about other family members (ones who do not qualify for deferred action) that target them for possible removal?

It is very important you consult with a competent attorney to determine whether you are eligible and if you have any questions concerning your qualifications.

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