DACA IS BACK!...FOR NOW

After years of attempts by the current Presidential administration, it seems that DACA is here to stay. On December 4, 2020, a U.S. District Court for the Eastern District of New York ordered the Department of Homeland Security (DHS) to fully reinstate Deferred Action for Childhood Arrivals (DACA). Qualified individuals are safe from deportation and can pursue work authorization for the time being.  

On December 7, 2020, the Department of Homeland Security and U.S. Citizenship and Immigration U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) have posted notices on their websites stating, effective December 7, 2020, USCIS is accepting first-time requests for consideration of deferred action under DACA based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020 order.  

People who meet the following criteria may apply for initial consideration of deferred action for childhood arrivals (DACA):

·      are under 31 years of age as of June 15, 2012;

·      came to the U.S. while under the age of 16;

·      have continuously resided in the U.S. from June 15, 2007 to the present;

·      entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012;

·      were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;

·      are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;

·      have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety. 

Cunningham Lopez is currently taking consultations while we await more specific direction from DHS and USCIS on whether or not the old or new forms will be used for applications. We anticipate that DHS and USCIS will be very busy with DACA applications in the new year, and applications are handled on a first come-first serve basis. Call us now if you would like to get started and move to the front of the line.

Después de años de intentos por parte de la actual administración presidencial, parece que DACA llegó para quedarse. El 4 de diciembre de 2020, un Tribunal de Distrito de los EE. UU. Para el Distrito Este de Nueva York ordenó al Departamento de Seguridad Nacional (DHS) restablecer por completo la Acción Diferida para los Llegados en la Infancia (DACA). Las personas calificadas están a salvo de la deportación y pueden solicitar una autorización de trabajo por el momento.

 El 7 de diciembre de 2020, el Departamento de Seguridad Nacional y Ciudadanía e Inmigración de los EE. UU. Los Servicios de Ciudadanía e Inmigración de los EE. UU. (USCIS) y el Departamento de Seguridad Nacional (DHS) publicaron avisos en sus sitios web que indican que, a partir del 7 de diciembre de 2020, USCIS está aceptando Solicitudes por primera vez para consideración de acción diferida bajo DACA basadas en los términos de la política de DACA en vigor antes del 5 de septiembre de 2017 y de acuerdo con la orden del Tribunal del 4 de diciembre de 2020.

 Las personas que cumplan con los siguientes criterios pueden solicitar la consideración inicial de la acción diferida para las llegadas en la infancia (DACA): 

• tienen menos de 31 años al 15 de junio de 2012; 

• llegó a los Estados Unidos cuando era menor de 16 años; 

• ha residido continuamente en los Estados Unidos desde el 15 de junio de 2007 hasta el presente; 

• ingresó a los EE. UU. Sin inspección antes del 15 de junio de 2012, o personas cuyo estatus migratorio legal venció el 15 de junio de 2012; 

• estuvieron físicamente presentes en los Estados Unidos el 15 de junio de 2012 y en el momento de realizar la solicitud de consideración de acción diferida con USCIS; 

• está actualmente en la escuela, se ha graduado de la escuela secundaria, ha obtenido un GED o ha sido dado de baja honorablemente de la Guardia Costera o las fuerzas armadas; • no ha sido condenado por un delito mayor, un delito menor significativo o más de tres delitos menores y no representa una amenaza para la seguridad nacional o la seguridad pública. 

Cunningham Lopez está recibiendo consultas mientras esperamos instrucciones más específicas del DHS y USCIS sobre si se utilizarán o no los formularios antiguos o nuevos para las solicitudes. Anticipamos que DHS y USCIS estarán muy ocupados con las solicitudes de DACA en el nuevo año, y las solicitudes se manejan por orden de llegada. Llámenos ahora si desea comenzar y pasar al frente de la línea.

The New Immigrant- Effects of the Executive Action

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On November 20, 2014, President Obama addressed the country and finally delivered on his long outstanding commitment to “fix the broken immigration system.”  However, he had to do so under his presidential authority to take Executive Action, which does not offer the same protections as laws that are passed by Congress.  This was a measure taken by the President after the House of Representatives refused to vote on an immigration bill that was passed by the Senate nearly a year and a half ago.  Based on the initiatives of the Executive Action, projections show that approximately 4.9 million undocumented individuals may be eligible for lawful status that were not previously eligible. 

The initiatives include the following: 1) expanding the Deferred Action for Childhood Arrivals program by eliminating the restriction on individuals over the age of 31 and pushing back the continuous residence in the U.S. requirement to January 1, 2010 ; 2) creating a new program called Deferred Action for Parental Accountability for parents of U.S. Citizens and Lawful Permanent Residents who have resided in the country continuously since January 1, 2010 and are not a priority for removal; and 3)  expanding the provisional waiver of unlawful presence to include spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to be eligible for a provisional waiver if a visa is available.

The actions taken by the President have caused controversy in the media and received extensive criticism by members of the Republican party who insist that the president’s actions exceeded the scope of his authority and were unconstitutional.  There have been threats to block funding of the programs and challenge the executive action in the Supreme Court.

 History shows that numerous presidents in the past have taken executive action to address immigration issues, many in an attempt to keep families together.  The major difference of President Obama’s action is that it targeted a historically large number of undocumented individuals who will qualify for a work permit and deferred action for a period of three years.

For those who benefit from the initiative to expand the program for the provisional waiver of unlawful presence, the action will provide an easier path to lawful permanent residence because they will not have to depart the country in order to apply.    Importantly, the Executive Action will also clarify the meaning of “extreme hardship” that must be demonstrated for approval of a waiver, which has been a highly scrutinized term that has caused many families to be torn apart.  Given the goals of the executive action it is likely that the clarification of extreme hardship will lead to a higher number of waiver approvals. 

So the question remains did President Obama do anything to fix the immigration system? The short, but complicated answer is, yes.  He took action that will result in more undocumented individuals obtaining lawful permanent resident status through the provisional waiver.  He also took action that will result in thousands of individuals who are currently in removal proceedings to be eligible for relief who would have otherwise been deported.  This will result in the unity of more families, the ability of undocumented individuals to obtain a driver’s license and more opportunity to obtain employment. However, the action is not the immigration reform that many had hoped for.  It does not provide a path to lawful permanent resident status for those granted deferred action, nor a path to citizenship and the policy could be taken away after President Obama serves his final term.  Overall, this executive action was a major step in the right direction to fix the immigration system.  It will benefit more undocumented individuals than any other action taken by a President in the history of our country and provide more families with economic and social stability.

Loved One Detained By Immigration? Here's What You Need To Know.

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If your loved one has recently been detained by immigration authorities the first issue to address is whether he or she is eligible for a bond.  Immigration and Customs Enforcement will assign an immigration officer to the detainee’s case, who will determine whether or not to set a bond.  However, some individuals will not qualify for release from detention because they are ineligible for bond under the Immigration and Nationality Act.  The most common reasons that one would be ineligible for bond include: felony conviction for crime involving moral turpitude, conviction for a drug or firearm offense, or conviction for a violent crime.

If mandatory detention does not apply then ICE can set a bond, or refuse to issue a bond, and the detainee will usually be calendared for a bond hearing before the Immigration Judge.  Often the bond amount set by ICE will be high, and it will be necessary to request a hearing for bond redetermination before the Immigration Judge.  The length of time for the bond hearing to occur varies, but typically can take one to three weeks.  If you immediately retain an attorney to file a motion for a bond hearing, the hearing is likely to be scheduled sooner. 

At the bond hearing, the detainee will have to demonstrate to the Immigration Judge that they are not a danger to the public and will appear for all scheduled hearings. This can be done by presenting evidence of family ties to dependent lawful residents, employment, and ties to the community. Individuals that are eligible for relief from removal generally have a better chance of receiving a bond.  Having a U.S. citizen or lawful permanent resident spouse, child or immediate relative usually increases one’s chances of being eligible for relief from removal.

The lowest amount of bond that the Immigration Judge can set is $1,500.  Typically, if an individual has convictions for offenses such as Driving Under the Influence, misdemeanor offenses, or multiple offenses for driving without a license, the Immigration Judge may increase the bond amount.  Most local bondsmen do not cover immigration bonds, but there are some that operate nationwide.  They will expect to receive a non-refundable payment of at least 10 to 15 percent of the total bond in addition to sufficient property as collateral to cover the remainder.

Bond hearings are held at the Immigration Court in you region and some are also accessible via televideo conference. The person setting the bond should make sure they are certain that the detainee will appear at all scheduled immigration hearings, because if they fail to appear the bond money will likely be forfeited.  The Immigration Court will return the bond to the individual who posted it at the conclusion of the immigration proceedings or the departure of the detainee.

 Overall, the immigration bond process is complicated and can be intimidating to those who are unfamiliar with the law.  You should consult with an experienced immigration attorney to develop a strategy to pursue your loved one’s release.

Blog Coming Soon!

Stay tuned for our first blog post. Smith Lopez Cunningham is excited to be contributing to the Chicago legal blogging community and serving the citizens of Chicago. We specialize in DUI Defense, Immigration, Family Law, and Personal Injury matters. Check back soon for updated information.