Defenders: Be Ready to Advise on the New Immigration Program

114392182The following is a guest blog post by Katherine Brady, a Senior Staff Attorney at the Immigrant Legal Resource Center in San Francisco.

On November 20, 2014 President Obama announced a new program—Deferred Action for Parental Accountability (DAPA)—that may help millions of undocumented immigrants who are parents of U.S. citizens or permanent residents. Qualifying applicants will get a temporary reprieve from deportation (currently set at three years), as well as an employment authorization document that will permit them to get a legal social security number. In California alone, over one million people may qualify for this program. Criminal defense lawyers will get a lot of questions about this program, because the main bar to eligibility is conviction of certain crimes. 

Defenders can make a tremendous difference to their clients by providing some basic advice and information about DAPA.

Start by advising anyone with a criminal conviction to seek legal help before applying for DAPA. Help people avoid scam artists by recommending that they go first to a reputable non-profit immigration agency, which might take the case or may refer them to a reputable lawyer.

All defenders should be able to provide some basic, accurate information about DAPA eligibility—even just what’s provided in this blog—to help combat the inevitable misinformation in the community.

Here are the basics you need to know about DAPA:

To be eligible for the program, the person must have:

  • been in the U.S. and had no lawful immigration status on November 20, 2014;
  • been the parent of a U.S. citizen or permanent resident child of any age, married or unmarried, on November 20, 2014; and
  • resided continuously in the U.S. since January 1, 2010.

There are crimes that are bars to eligibility. They are:

  • Any felony conviction. (Designating a felony as a misdemeanor under Prop 47 or Pen C §17 avoids this bar.)
  • Three misdemeanor convictions that arose out of three different incidents.
  • Conviction of a “significant misdemeanor,” defined as (a) any misdemeanor in which 90 days or more custody was ordered (excluding suspended sentence), or (b) a misdemeanor conviction relating to domestic violence, firearms, drug trafficking (but not possession), burglary, sexual abuse, or a DUI (reckless driving, or possibly wet reckless, is not a bar).
  • Gang conviction or participation. A gang sentence enhancement or offense with an element relating to gangs is a bar. Further, people even suspected of ever having participated in gang activity may be denied DAPA and also referred into removal proceedings. These people need specialized advice before applying.
  • Conviction of an aggravated felony. The most common conviction would be a misdemeanor conviction of theft, receipt of stolen property, or a violent crime in which a sentence of a year or more was imposed, including suspended sentence. See 8 USC §1101(a)(43).

Knowing the basics of DAPA will help you to identify clients who may be eligible and work to fashion a disposition that avoids a criminal conviction that would be a bar.

Get more detailed information on the new DAPA program, expansion of DACA, and changes in enforcement priorities at the Immigrant Legal Resource Center website. DAPA will also be discussed in the California Criminal Defense of Immigrants E-Newsletter. Learn how to protect your client’s immigration interests in criminal cases in CEB’s California Criminal Defense of Immigrants 2014.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

 

One Response

  1. Hi, Just a reminder that the “no lawful immigration status” phrase is a legal conclusion that you should explore carefully with your client, criminal or otherwise. There are a lot of “non-immigrant” visa statuses in 8 U.S.C., but all can end with the non-citizen still standing in the US.
    Visitors (B visas) and students (usually F visas, but sometimes J or M) may show up believing they are in lawful immigrant status because they entered with a visa, but more questioning sometimes reveals a visa overstay. This is not the end of the world, so long as the client tells you early in the game so you can deal with it.

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