Do DREAMers really need a lawyer?

8/3/12 DACA

We don’t have all the details yet, but the basic requirements to qualify for deferred action seem, well, pretty straightforward—and a motivated high school graduate or college student might be tempted to try to apply on their own, without seeking advice from an attorney or legitimate nonprofit.

Even though the requirements look simple, you don’t need a law degree to know that looks can be deceiving.  So when do you really need a lawyer?  And just as importantly, what can (and should) a lawyer do for you?

In order to be considered for deferred action for childhood arrivals or “DACA” (apparently the new government acronym for the program) an individual must have arrived in the U.S. when they were under age sixteen.  In addition, they must have been physically present in the U.S. and under age 31 when the policy was announced on June 15, 2012, as well as show that they continuously resided in the U.S. for at least five years before that date.

In order to qualify, the applicant must be in school, have graduated high school, obtained a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces.  Individuals who have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety may not qualify. Only youth who are at least 15 years old will be able to apply, unless they are currently facing deportation.

Some of the red flags are obvious; some are not.

If a DREAMer has ever had any contact with law enforcement, even if it never resulted in a conviction, the case should still be screened by a lawyer.  Why?  A competent immigration lawyer should be able to review your records and determine what’s really in there (hint:  it’s often a whole lot different than what you thought).

For example, an incident you thought was resolved without any consequences may actually be a real problem. If the judge said you wouldn’t have a record because you were a minor, or told you your record would be wiped clean if you kept out of trouble or completed public service hours, that incident might still be used to disqualify you, either as a conviction for immigration purposes or under public safety grounds.  Just the suggestion—even without proof—of gang activity, or a history of certain traffic infractions might affect your application.

On the other hand, if you think a prior brush with the law means you can’t qualify, remember that these requirements are evolving, so it’s best to have an immigration attorney evaluate your case.  Even if a conviction stands in the way, a lawyer may be able to find a legal basis to reopen that case to obtain post-conviction relief.

Anyone who has ever filed anything or had any contact with immigration authorities would be smart to have a lawyer review their immigration file and history. Perhaps a prior application has gone missing—or gone south.  Cases filed by a notario—even something filed on your behalf by a family member—may contain inaccurate or even fraudulent information that could knock you out of consideration.  Sometimes, an out-of-date address means notices didn’t reach you and your case was referred for a deportation hearing—one that you never knew about and never went to.

If you have ever left the U.S., you will want to ask a lawyer whether that departure interrupted your continuous presence (especially if you left because you were granted voluntary departure or ordered removed).  And if there were any issues on your return—like being refused entry, caught at the border, or using a fake document—there will be immigration consequences to consider.

What about someone who isn’t sure how to prove that they were here on June 15, 2012, or isn’t sure they can show they have been continuously residing in the U.S. for five years?  A competent immigration lawyer can help, especially if you think you don’t have access to reliable evidence (or maybe don’t have all the evidence in your own name).

Did you ever use a false identity, make up a social security number or claim to be a United States citizen?  Did you use your cousin’s U.S. birth certificate to get an ID or a job or a driver’s license?  See a lawyer to understand the immigration consequences.

Ok, so people who have had run-ins with law enforcement or who have a tricky immigration history may already know they need a lawyer, but what about the “easy” cases?  You may be able to navigate the application procedures by yourself, but even for the cleanest cases, the real question is not whether it’s safe to apply, but smart.

Every applicant is coming “out of the shadows” and providing detailed information to the government.  If you’re wrong about your case or how you handle your application, maybe you only wasted time waiting for a decision and money on government fees.  But what if you find yourself in custody or facing removal?

In an initial consultation, an immigration attorney should not only review DACA eligibility, but also take your complete immigration history (and even your family members’ history, in some cases) to see if there are other options or particular risks to applying.  You should have a chance to ask the lawyer questions and leave with a clear understanding about your immigration case.  If that can’t be handled in the short time and with the limited information available during your consult, you should at least know what needs to be done to figure things out.

Even though it’s often better to have a lawyer handling your case, not every case will need a lawyer to be successful.  But if things aren’t going smoothly—if you get a notice that says your evidence isn’t good enough or a letter you don’t understand, consult with an attorney immediately to understand your rights.  If your application is denied, or you wind up being issued a Notice to Appear and referred to immigration court, it’s time to get back to a lawyer’s office!

Only a competent immigration attorney or BIA accredited representative can evaluate your case, identify the risks and even explore other legal avenues for gaining status (which might even be better than deferred action).

Consider using the American Immigration Lawyers Association referral service to find a lawyer in your area. The listed individuals are licensed attorneys who have been AILA members for at least two years and comply with annual continuing legal education requirements, as well as carry malpractice insurance.

If you can’t afford a lawyer, consider working with a legitimate nonprofit that provides immigration legal help, usual through a BIA accredited representative (a non-lawyer legal professionals trained and supervised by attorneys). Remember, not every group that claims to be a nonprofit is working in the community’s best interests.

Finally, if you think you’ve been scammed—by an attorney, or just someone posing as an attorney—report it to your local bar association before they take advantage of someone else! Be smart, be safe, and protect yourself and your family—get the right information to make the decision that’s right for you.

by Laura Lichter