DREAMers, Childhood Arrivals, and the Need for Competent Legal Representation

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Senator Dick Durbin and Congressman Luis V. Gutierrez have taken an extraordinary position in advising against hiring an attorney. This statement is ill advised, irresponsible, and harmful.

Immigration law is extraordinarily complex. With “only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity’.” E. Hull, Without Justice For All 107 (1985); Castro-O’Ryan v. U.S. Dept. of Immigration and Naturalization, 847 F.2d 1307 (9th Cir. 1988). The Ninth Circuit described immigration law as a “labyrinth almost as impenetrable as the Internal Revenue Code.” Escobar-Grijalva v. I.N.S., 206 F.3d 1331, 1334 (9th Cir.2000).

For Senator Durbin and Congressman Gutierrez to state that the childhood arrivals (Dreamers) can file and qualify without an attorney shows that both either do not understand the issues or are misguided in their attempt to protect vulnerable immigration population.

One thing must be made absolutely clear – what the request for deferred action is and is not. It is not a status, it is not a visa, it does not give path to permanent residence or citizenship, it does not erase previously accrued unlawful presence, it does not erase unlawful entry or entries, it does not erase misrepresentations made, and it is not guaranteed to be approved or renewed. It is discretionary – in other words, it is up to the USCIS whether to grant deferred action even if the alien meets the criteria.

In addition, it requires that each applicant meet certain evidentiary criteria with objective evidence, which the immigrant has a burden to produce. For example, if a child was brought unlawfully there may not be evidence how and when the child entered, or how old was the child when the child was brought to the United States. An attorney can work on gathering evidence from school, medical records, affidavits, photographs, and other private or public sources in order to document the physical presence in the United States of the child.

There are other issues that a competent immigration attorney will consider to reduce collateral damage. For example, currently if an immigrant has falsely claimed to be a U.S. citizen on a I-9 (employment) form, or if an immigrant has voted in US elections, the USCIS takes the position that these are false claims to U.S. citizenship which make an alien removable from the United States. These are issues that must be considered before the alien can provide his or her information to the USCIS.

A competent attorney will also screen the cases not only for criminal or other issues that may make the person ineligible to apply or unlikely to get a deferred action approved, but also for alternative forms of relief with better and permanent outcome giving path to US citizenship. There are young people who may be eligible for permanent residence, for U or T visa, for VAWA relief, or there may be even a few who are actually US citizens either by birth or as a matter of law and do not know it.

If you believe that you may qualify for deferred action, contact our law firm for a competent legal advice and assistance.