El-Gazawy v. Holder, Ineffective assistance of counsel, Motion to Reopen untimely, 7th Circuit Court of Appeals

Posted on August 17, 2012 by Mike Baker

Docket: 11-3582    August 16, 2012. Judge Rovner.

Doc Uploaded Filed Description
1 06/01/2012 06/01/2012 Oral Argument
2 08/16/2012 08/16/2012 Opinion (ROVNER)

El-Gazawy a citizen of Jordan, entered the U.S. in 1990 as a non-immigrant, overstayed, and failed to appear for special registration in 2003, required by the National Security Entry-Exit Registration System program. In 2006, the Department of Homeland Security served notice that he was removable under 8 U.S.C. 1227(a)(1)(B); 8 U.S.C. 1227(a)(3)(A) and 1305. At his hearing, El-Gazawy admitted the charges and stated that he would seek cancellation of removal (8 U.S.C. 1229b(b)) or voluntary departure (8 U.S.C. 1229c). The IJ allowed 90 days for the necessary paperwork and advised that failing to timely file fingerprints could result in denial of relief. With an additional schedule change, El-Gazawy had about 14 months to file the necessary paperwork. The IJ concluded that no good cause had been demonstrated for delay, deemed the cancellation claim abandoned, and granted voluntary departure. The BIA dismissed an appeal. El-Gazawy had been represented by attorney Abuzir throughout, but obtained new counsel for filing a motion to reopen, seven months later, arguing ineffective assistance of counsel. El-Gazawy claimed that he had given notice to Abuzir and had filed a claim with the Illinois Attorney Registration and Disciplinary Commission. The BIA denied his motions. The Seventh Circuit denied a petition for review. https://mikebakerlaw.com/blog/–skip-columns=guidwp-content/uploads/2012/08/11-3582-2012-08-16El-Gazawy-v.-Holder.pdf

United States Court of Appeals

For the Seventh Circuit

No. 11-3582

HUSNI MOH’D ALI EL-GAZAWY,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

On Petition for Review of a Final Order of
the Board of Immigration Appeals.
A099 025 945

ARGUED JUNE 1, 2012—DECIDED AUGUST 16, 2012

Before FLAUM, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Husni Moh’d Ali El-Gazawy petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”). As is often the case in immigration matters, El-Gazawy’s path to this court is a long and winding road. After straightening out the twists and turns, we conclude that the petition must be denied.

I.

El-Gazawy is a native and citizen of Jordan who entered the United States in June 1990 as a non-immigrant visitor. He overstayed his visa and then failed to appear for special registration by April 25, 2003, as required by the National Security Entry-Exit Registration System (“NSEERS”) program. On August 10, 2006, the Department of Homeland Security (“DHS”) served El-Gazawy with a Notice to Appear, alleging that he was removable from the United States because (1) he overstayed his visa, in violation of 8 U.S.C. §§ 1227(a)(1)(B); and (2) he failed to comply with the NSEERS requirements, in violation of 8 U.S.C. §§ 1227(a)(3)(A) and 1305, and 8 C.F.R. § 264.1(f)(4). At his first hearing before an Immigration Judge (“IJ”) on October 26, 2006, El-Gazawy was represented by a lawyer named Omar Abuzir. In order to allow the recently retained attorney to prepare, the case was continued to April 26, 2007. At that hearing, El-Gazawy, through his lawyer, admitted to the charges alleged in the Notice to Appear and conceded removability. He also informed the IJ that he would be seeking relief in the form of cancellation of removal for non-permanent residents under 8 U.S.C. § 1229b(b), and, in the alternative, voluntary departure under 8 U.S.C. § 1229c. The IJ allowed ninety days for El-Gazawy to file the necessary paperwork for cancellation of removal and voluntary departure, setting July 25, 2007 as the deadline. The IJ then set a hearing date of April 30, 2008, and advised El-Gazawy that the consequences of failing to file his fingerprints in a timely fashion could result in denial of the requested relief.

On July 28, 2008, El-Gazawy, still represented by Abuzir, appeared before a new IJ and requested a hearing date. The record does not explain why the original schedule was abandoned,1 but the IJ set a new hearing date of October 9, 2009, with a “call up date” two weeks before that, on September 22, 2009, the last date to file all relevant documents. That schedule allowed El-Gazawy approximately fourteen months to complete and file the necessary paperwork. The IJ asked counsel if he would assist his client in obtaining and filing fingerprints in the next 120 days, by November 25, 2008. Counsel assented and the IJ warned counsel and El-Gazawy that the failure to file the fingerprints timely could result in a finding that the request for cancellation of removal had been abandoned.

September 22, 2009 came and went with the IJ not receiving any filing from El-Gazawy or his lawyer.2 On the afternoon of Friday, October 2, El-Gazawy’s lawyer submitted the documents to the court along with a motion for leave to file the documents instanter. On Wednesday, October 7, 2009, El-Gazawy appeared for his hearing, still represented by Abuzir. As the hearing began, Abuzir handed the IJ a file-stamped copy of the papers he had filed on Friday, five days earlier. This was the first time the IJ saw the papers; counsel for DHS had not yet received a copy of the filing. Noting that the government had no opportunity to review the documents before the hearing, the IJ asked counsel why he had not filed the papers earlier. Abuzir responded that he had “just received” documents supporting the application prior to filing them.3 He contended that the late filing did not prejudice counsel for DHS because this was a “straight-out cancellation.” Counsel explained he had been waiting for birth certificates, a lawful permanent resident card for El-Gazawy’s wife (he had married in August), and evidence relating to El-Gazawy’s ten years of physical presence in the United States.

1 The Oral Decision of the Immigration Judge, October 7, 2009,

R. at 319-24, reveals that the case originally was assigned to Judge O. John Brahos. When Judge Brahos retired, the matter was reassigned to Judge Carlos Cuevas. The reassignment likely contributed to the schedule changes.

2 Although the IJ and the government’s attorney had not received any filings, El-Gazawy includes in the record a receipt demonstrating that he submitted his application for cancellation of removal to the DHS on September 14, 2009, within the deadline set by the IJ. R. at 26. We found no indication in the record that any of the supporting documentation was submitted before the deadline set by the IJ.

The IJ noted that he had not received any indication by September 22 that El-Gazawy wished to proceed with his claim, that his docket was full, and that the absence of any timely filing generally signaled that the alien was abandoning the claim or that there had been a breakdown in the relationship between the alien and his counsel. The IJ noted that approximately fourteen months had passed since the July 2008 hearing where the filing deadline had been set. The IJ cited regulations at 8 C.F.R. § 1003.47(c) that provided that a failure to file necessary documentation or comply with the deadline set by the IJ constitutes abandonment of the claim unless good cause is shown for the failure. Counsel noted that he was not requesting a continuance and that he was prepared to go forward with presenting his sole witness, El-Gazawy, to demonstrate the extreme and unusual hardship that would befall his wife and three U.S. citizen children if he were to be deported. The IJ concluded that no good cause had been demonstrated for the delay in filing the documents and he therefore deemed the claim for cancellation abandoned. The IJ granted voluntary departure, and after verifying that El-Gazawy spoke English, the IJ directly addressed him, detailing his appeal rights and the consequences of failing to depart voluntarily from the United States during the relevant time period. The IJ then returned to Abuzir the copy of the documents that Abuzir handed him at the beginning of the hearing, because Abuzir told the IJ they were his only copy and because the IJ did not wish to prejudice the government on appeal by including in the record documents that DHS counsel had not received.

3 In his motion for leave to file the documents instanter, Abuzir contended that he inadvertently had not marked the deadline for the filing of documents in his calendar, and became aware on October 1, when preparing for the hearing, that he had not filed the documents. Thus, his oral explanation for the late filing—that he had been waiting for and had only just received the documents—conflicted with his written reason for the late filing—that he had inadvertently failed to mark the deadline on his calendar.

On October 26, 2009, El-Gazawy, through Abuzir, timely appealed the IJ’s oral decision to the BIA. In his appeal, he contended that the IJ erred when he deemed the application for cancellation of removal abandoned, and that the IJ abused his discretion in refusing to find good cause for the delay in filing the documents. On August 20, 2010, the BIA dismissed the appeal, noting that an IJ has broad discretion to conduct and control proceedings, and could properly dismiss as waived any applications or supporting papers not filed within the time limits established by the IJ. See 8 C.F.R. § 1003.31(c). The Board also commented that El-Gazawy had failed to submit any evidence during the pendency of the appeal that would establish prima facie eligibility for cancellation of removal. Finally, the Board declined to reinstate El-Gazawy’s voluntary departure period because El-Gazawy had submitted no proof that he had paid the requisite $500 bond.

On September 20, 2010, still represented by attorney Abuzir, El-Gazawy filed a Motion to Reconsider and Remand (hereafter “First Motion to Reconsider”) with the BIA. In this motion, he asserted that the BIA made two errors of fact in its August 20, 2010 decision. First, he contended that the BIA erred in its finding that the filing due date of September 22, 2009 was not in dispute. To the contrary, he maintained that the IJ’s instructions regarding the cut-off date for filing documents were unclear, and no clear due date had been set for the application. He conceded that the IJ warned El-Gazawy that his application would be deemed abandoned if he failed to supply his fingerprints by November 25, 2008, but he asserted that he complied with that deadline. In contrast, no similar warning was given for failing to timely file the application itself. As for the second factual error asserted, El-Gazawy challenged the BIA’s finding that he had failed to submit evidence of his prima facie eligibility for cancellation of removal. He submitted the application and supporting documents on October 2, 2009, and they were file-stamped and made part of the record on that date.

On April 6, 2011, before the BIA ruled on this First Motion to Reconsider, El-Gazawy secured a new lawyer and filed a document titled “Respondent’s Supplemental Motion to Reconsider, Reopen and Remand Based on Matter of Lozada” (hereafter “Motion to Reopen”). In the Motion to Reopen, El-Gazawy’s new counsel argued that the original lawyer’s failure to timely file the application for cancellation of removal constituted ineffective assistance of counsel. This ineffective assistance prejudiced El-Gazawy because he was not able to establish his eligibility for cancellation of removal. New counsel also contended that both El-Gazawy and the new counsel exercised due diligence in filing the Motion to Reopen and that equitable tolling should therefore apply to extend the usual ninety-day time limit for filing motions to reopen. In support of the argument for equitable tolling, El-Gazawy submitted an affidavit stating that Abuzir failed to file his application within the time set by the IJ, that on October 7, 2009, the IJ deemed therefore his application abandoned, and that he subsequently hired a new lawyer to remedy the ineffective assistance of his previous counsel. El-Gazawy also averred that he had “given notice” to his prior attorney and had filed a claim with the Illinois Attorney Registration and Disciplinary Commission (“ARDC”).

On May 11, 2011, the BIA denied both the First Motion to Reconsider and the Motion to Reopen. The BIA noted first that the Motion to Reopen was untimely. The final order had been entered by the Board on August 20, 2010, and the Motion to Reopen was not filed until April 6, 2011, well past the ninety-day time limit for filing motions to reopen. The Board concluded that ElGazawy’s Motion to Reopen did not qualify for equitable tolling because he failed to demonstrate due diligence in filing the motion. More than seven months passed between the final order and the filing of the Motion to Reopen, and yet El-Gazawy provided no evidence regarding the steps he took to protect his rights during those seven months. The BIA also found that El-Gazawy did not comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), because he did not inform his prior counsel of his intention to file the Motion to Reopen, and he did not provide his former counsel with an adequate opportunity to respond. The BIA noted that El-Gazawy filed his complaint with the ARDC on April 5, 2011, and filed the Motion to Reopen one day later, on April 6, 2011. The BIA also determined that El-Gazawy had not established prejudice for his ineffective assistance of counsel claim because he had not articulated how his wife and children would suffer exceptional and extremely unusual hardship upon his removal from the United States. Finally, the BIA denied the First Motion to Reconsider because El-Gazawy simply raised arguments that had already been rejected and because his claims of factual error were not supported by the record.

El-Gazawy’s new counsel then filed a timely “Respondent’s Motion to Reconsider” (hereafter “Second Motion to Reconsider”) on June 9, 2011. This time, he argued that the BIA erred in four ways. First, he contended that his Motion to Reopen was timely, or in the alternative, qualified for equitable tolling. Second, he claimed that he exercised due diligence in filing the Motion to Reopen considering the time it took to find new counsel, obtain the file from prior counsel, research the issues, and decide with the client an appropriate legal strategy. Third, El-Gazawy asserted that he was prejudiced because he was not able to establish his eligibility for cancellation of removal. And fourth, he argued that a claimant need not demonstrate that he would win his case in order to establish prejudice, but rather need only show that he was not afforded an opportunity to present his case because of his counsel’s ineffective assistance.

The BIA denied the Second Motion to Reconsider on October 20, 2011, rejecting again the arguments that were duplicative of claims made in earlier motions. The BIA also rejected the new claim that the Motion to Reopen was timely because it was somehow “boot-strapped” to the earlier-filed First Motion to Reconsider, a claim lacking in any legal support. El-Gazawy now petitions for our review.

II.

In his petition for review, El-Gazawy contends that the BIA misconstrued the standards for analyzing a motion to reconsider, erroneously requiring him to raise new facts or new legal arguments. He also argues that the BIA erred in finding the Motion to Reopen untimely because it was filed while prior counsel’s timely First Motion to Reconsider was pending. In the alternative, he maintains that the time for filing the Motion to Reopen should have been equitably tolled due to the ineffective assistance provided by his first lawyer.

A.

Because the filing of a motion to reconsider does not toll the time in which to seek review of the denial of a motion to reopen or dismissal of the underlying appeal, the only matter before us is the BIA’s October 20, 2011 denial of El-Gazawy’s Second Motion to Reconsider. Stone v. INS, 514 U.S. 386, 405 (1995) (the finality of a removal order is not affected by the subsequent filing of a motion to reconsider); Muratoski v. Holder, 622 F.3d 824, 829-30 (7th Cir. 2010) (a motion to reconsider does not toll the time to seek judicial review); Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006) (a motion asking the BIA to reconsider its decision does not toll the time to seek judicial review). Under the same authority, we may not review the Board’s May 11, 2011 decision denying both the Motion to Reopen and the First Motion to Reconsider. Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006) (the thirty-day limit is jurisdictional and therefore may not be excused). We review the Board’s denial of El-Gazawy’s Second Motion to Reconsider for abuse of discretion. Muratoski, 622 F.3d 830; Hernandez-Baena v. Gonzales, 417 F.3d 720, 724 (7th Cir. 2005); Ali v. Ashcroft, 395 F.3d 722, 731 (7th Cir. 2005).

B.

We begin with El-Gazawy’s argument that the BIA erred in finding the Motion to Reopen untimely because it was filed while prior counsel’s timely First Motion to Reconsider was pending. El-Gazawy bases this argument on the regulations governing the BIA, which provide:

A motion to reopen a decision rendered by an Immigration Judge or Service officer that is pending when an appeal is filed, or that is filed while an appeal is pending before the Board, may be deemed a motion to remand for further proceedings before the Immigration Judge or the Service officer from whose decision the appeal was taken. Such motion may be consolidated with, and considered by the Board in connection with, the appeal to the Board.

8 C.F.R. § 1003.2(c)(4). The government responds first that El-Gazawy failed to exhaust this argument before the BIA, and that we should therefore decline to review it. See 8 U.S.C. § 1252(d)(1) (the “court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right”); Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008) (“[a]n alien ordered removed from this country is required to exhaust the administrative remedies available to him before seeking judicial review of the removal order”). But see Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (although the obligation to exhaust usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal, there are a number of exceptions to this non-jurisdictional rule).

El-Gazawy concedes that he failed to cite this specific provision of the regulations in his arguments before the BIA, but contends that he nonetheless adequately preserved the issue in his Second Motion to Reconsider. In the “Issues presented” section of the Second Motion, El-Gazawy stated that the “supplemental motion based on ineffective assistance of counsel was timely. In the alternative, the motion qualifies for equitable tolling.” In the “Analysis” section of the Second Motion, we find the entirety of the timeliness argument under the heading “Motion was Timely”:

27. As supplemental motion, was bootstrapped to filing of Sept. 2010. No new time addition.

R. at 17, 21. The BIA characterized this as an argument “without citation or supporting authority . . . that the untimely motion to reopen was ‘bootstrapped’ to the prior motion to reconsider.” BIA October 20, 2011 Order at 1. To the absence of citation or supporting authority, we add that the argument also lacked grammatical structure, consisting only of two sentence fragments. The BIA rejected this largely unformed argument because the “inclusion of the term ‘supplemental’ in the title of a motion [cannot] convert an untimely motion into a timely motion.” BIA October 20, 2011 Order at 1. Although the BIA recognized that El-Gazawy was attempting to link the Motion to Reopen to the timely-filed First Motion to Reconsider, the BIA was not on notice that El-Gazawy was invoking 8 C.F.R. § 1003.2(c)(4) to do so. El-Gazawy contends that his failure to cite the particular regulation is not determinative because the BIA should be familiar with its own regulations. Although it is true that an agency should be familiar with its own regulations, a petitioner still must present an argument based on those regulations with enough clarity to put the agency on notice of the issue being decided. The exhaustion requirement “gives the Board an opportunity to apply its specialized knowledge and experience to the matter, it provides the petitioner with the relief requested in the first instance, and it provides us with reasoning to review.” Arobelidze, 653 F.3d at 517. If the BIA had addressed this issue on its own, all of these concerns would have been satisfied, and we could treat the issue as exhausted and therefore reviewable. But the argument that El-Gazawy presented was simply too thin for the BIA to recognize it in the form the petitioner now urges us to consider. Because the issue that El-Gazawy now raises was not presented in a recognizable manner before the BIA, and because the BIA did not rule on this argument, we conclude that El-Gazawy failed to exhaust his administrative remedies.

C.

In any case, there is no error in the BIA’s conclusion that the Motion to Reopen was untimely. A motion to reopen must be filed no later than ninety days after the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); Sarmiento v. Holder, 680 F.3d 799, 801 (7th Cir. 2012). The BIA has interpreted the date of final administrative order of removal as being the date that the BIA dismissed the appeal of an IJ’s removal order, and not the date on which the BIA ruled on a motion to reconsider. Sarmiento, 680 F.3d at 802 (quoting 8 C.F.R. § 1003.2(c)(2)) (the Board’s regulation corresponding to § 1229a(c)(7)(C)(i) explains that a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”). “To conclude otherwise would allow aliens to receive extra time to move to reopen their cases by the simple expedient of filing frivolous motions to reconsider.” Sarmiento, 680 F.3d at 802. In this case, the final administrative decision was August 20, 2010, when the Board dismissed the appeal of the IJ’s removal order. The Motion to Reopen was not filed until April 6, 2011, well after the ninety-day deadline.

El-Gazawy contends that his situation is distinguishable from Sarmiento because he argued before the BIA, and continues to maintain in his petition in this court, that he qualifies for equitable tolling due to the ineffective assistance of his first lawyer. See Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA rejected this claim (twice) because El-Gazawy failed to demonstrate that he exercised due diligence in seeking relief and also failed to show that he suffered prejudice as a result of his lawyer’s deficient performance.

In order to succeed on a claim for equitable tolling, a petitioner must demonstrate due diligence. Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007); Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006). In assessing due diligence in the context of ineffective assistance of counsel, the claimant must demonstrate that he could not reasonably have been expected to file earlier. Johnson, 478 F.3d at 799; Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). See also Patel, 442 F.3d at 1016 (equitable tolling requires a court to consider whether a reasonable person in the claimant’s position would have been aware of the possibility that he had suffered an injury). In support of his claim of due diligence, El-Gazawy attached an affidavit to his Motion to Reopen (“Affidavit”). In the April 5, 2011 Affidavit, El-Gazawy simply asserted that (1) he hired Abuzir; (2) that Abuzir failed to meet the IJ’s September 22, 2009 deadline for filing his application for cancellation of removal and supporting documentation; (3) that the IJ deemed his application abandoned and ordered him removed on October 7, 2009; (4) that he “subsequently” hired new lawyers to help him remedy the ineffectiveness of his prior counsel; and (5) that he had given notice to his prior attorney and filed a claim against the attorney with the ARDC. El-Gazawy did not state when he discovered that his lawyer was not performing competently or what steps he took in the interim to protect his interests. He offers no evidence regarding what happened between the IJ’s order of removal on October 7, 2009, and the April 6, 2011 filing of the Motion to Reopen. In light of his failure to offer any support for his claim that he acted diligently to preserve his rights during that time, we cannot say that the BIA abused its discretion in finding that El-Gazawy failed to meet the standard for due diligence.

Finally, even if El-Gazawy had exercised due diligence, he has never demonstrated that Abuzir’s actions prejudiced him. El-Gazawy takes the position that he has adequately demonstrated prejudice by showing that he was denied his day in court, that he was denied an opportunity to present his evidence in support of his application for cancellation of removal. But to this day, El-Gazawy has not proffered or described any of the evidence that he was prevented from presenting. In order to qualify for cancellation of removal, he was required to demonstrate that his wife and children would have suffered “exceptional and extremely unusual hardship.” See 8 U.S.C. § 1229b(b)(1)(D) (“The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien . . . establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence”). Without any evidence that he could have succeeded on the merits, his attorney’s incompetence did not prejudice him. See Rapheal v. Mukasey, 533 F.3d 521, 533 (7th Cir. 2008) (prejudice means that the lack of a fair hearing actually had the potential for affecting the outcome of the proceedings); Hamid v. Gonzales, 417 F.3d 642, 646-47 (7th Cir. 2005) (applicant’s failure to allege excluded testimony that would potentially affect outcome of hearing was fatal to due process claim). Because El-Gazawy has never articulated what evidence he would have presented to show that his removal would have caused exceptional and extremely unusual hardship for his wife and children, we cannot conclude that the BIA abused its discretion in denying his Second Motion to Reconsider.

III.

We have reviewed El-Gazawy’s remaining arguments and find no merit in them. For the reasons stated above, El-Gazawy’s petition for review is

DENIED.

8-16-12

 

Posted in 7th Circuit, 7th Circuit Cases- Aliens, ineffective assistance of counsel, Legal Ethics, Motion to Reopen, Professional Malpractice & Ethics, U.S. 7th Circuit Court of Appeals | Tagged | Leave a comment

How to Fill Out Form I-821D | USCIS Begins Accepting Requests for Consideration of Deferred Action for Childhood Arrivals

Posted on August 15, 2012 by Mike Baker

Aug. 15, 2012

WASHINGTON— Today, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting requests, effective immediately, for consideration of deferred action for childhood arrivals. On June 15, Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and meet other key guidelines may request, on a case-by-case basis, consideration of deferred action.

“USCIS has developed a rigorous review process for deferred action requests under guidelines issued by Secretary Napolitano,” said USCIS Director Alejandro Mayorkas. “Childhood arrivals who meet the guidelines and whose cases are deferred will now be able to live without fear of removal, and be able to more fully contribute their talents to our great nation.”

Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. USCIS will review requests and make decisions on a case-by-case basis.  While it does not provide lawful status or a pathway to permanent residence or citizenship, individuals whose cases are deferred as part of this process will not be removed from the United States for a two-year period, subject to renewal, and may also apply for employment authorization.

USCIS is committed to ensuring that this new process works within the agency’s mission to administer our nation’s immigration benefits, provide high quality service to the public, and safeguard the integrity of the immigration system.

__________________________________________________________

Instructions for Consideration of Deferred Action for Childhood Arrivals: How to Fill Out Form I-821D

Department of Homeland Security U.S. Citizenship and Immigration Services

What Is the Purpose of This Form?

USCIS Form I-821D OMB No. 1615-0124 Expires 02/28/2013

The purpose of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, is to request that U.S. Citizenship and Immigration Services (USCIS) consider deferring action, on a case-by-case basis, based on the guidelines described in the Secretary of Homeland Security’s memorandum issued on June 15, 2012, as reflected in the “What is a Childhood Arrival for Purposes of This Form?” section below (Secretary’s memorandum). Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time, unless the Department of Homeland Security (DHS) chooses to terminate the deferral. See the Secretary’s memorandum at www.uscis.gov/childhoodarrivals.

When Should I Use Form I-821D?

Use Form I-821D to request consideration of deferred action under the Secretary’s memorandum. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not provide lawful status. All individuals filing Form I-821D must also file Form I-765, Application for Employment Authorization, and Form I-765WS, Form I-765 Worksheet. See “Initial Evidence” section for more information.

What is a Childhood Arrival for Purposes of This Form?

An individual may be considered for deferred action for childhood arrivals if he or she:

1. Was under the age of 31 as of June 15, 2012;

2. Came to the United States before reaching his or her 16th birthday;

3. Has continuously resided in the United States since June 15, 2007, up to the present time;

4. Was present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;

5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;

6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Who May File Form I-821D?

1. Childhood Arrivals Who Have Never Been in Removal Proceedings

If you have never been in removal proceedings, but were in unlawful status as of June 15, 2012, submit this form to request that USCIS consider deferring action in your case. For deferred action for childhood arrivals, unlawful status means your lawful immigration status expired as of June 15, 2012, or you entered the United States without inspection. You must be 15 years of age or older at the time of filing and meet the guidelines described in the Secretary’s memorandum to be considered for deferred action.

2. Childhood Arrivals Whose Removal Proceedings Were Terminated

If you were in removal proceedings which have been terminated by the immigration judge prior to this request, you may use this form to request that USCIS consider deferring action in your case. You must be 15 years of age or older at the time of filing and meet the guidelines described in the Secretary’s memorandum to be considered for deferred action.

If you are currently in removal proceedings, have a final removal order, or have a voluntary departure order, you may use this form to request that USCIS consider deferring action in your case, even if you are under the age of 15 at the time of filing. You must also meet the requirements described in the Secretary’s memorandum, including the requirement that you were not age 31 or older on June 15, 2012, to be considered for deferred action.

NOTE: If U.S. Immigration and Customs Enforcement (ICE) has already deferred action in your case, you may file Form I-765 and Form I-765WS with USCIS to ask for work authorization and do not need to file this form.

General Instructions

Each request must be properly signed and accompanied by Form I-765 with fees, and Form I-765WS. If you are under 14 years of age, your parent or guardian may sign the request on your behalf. A photocopy of a signed request or typewritten name in place of a signature is not acceptable. This request is not considered properly filed until accepted by USCIS.

Evidence. You must submit all required initial evidence along with all the supporting documentation with your request at the time of filing.

Biometric Services Appointment. Individuals requesting consideration of deferred action for childhood arrivals will be sent a notice scheduling them to appear at an Application Support Center (ASC) for biometrics collection. Failure to comply with this notice may result in the denial of the deferred action request.

Copies. Unless specifically required that an original document be filed with an application or petition, a legible photocopy may be submitted. Original documents submitted when not required may remain a part of the record, and will not be automatically returned to you.

Translations. Any document containing foreign language submitted to USCIS must be accompanied by a full English language translation which the interpreter has certified as complete and accurate, and by the interpreter’s certification that he or she is competent to translate from the foreign language into English.

Advance Parole. Requests for advance parole will not be considered unless and until USCIS decides to defer action in your case. Do not submit Form I-131, Application for Travel Document, with Form I-821D; if you do, the entire submission will be rejected and returned to you.

How to Fill Out Form I-821D

1. Type or print legibly in black ink.

2. If you need additional space to complete any item, proceed to Part 7., Additional Information, of the form.

3. Answer all questions fully and accurately. If an item is not applicable or the answer is “none,” leave the space blank.

Initial Evidence

1. What Documents Should You Submit With Your Form I-821D?

a. You do not need to submit original documents unless USCIS requests them.

b. Evidence and supporting documents that you file with your Form I-821D should show that you meet all of the following:

(1) Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;

(2) Are at least 15 years of age at the time of filing, if required; (See “Who May File Form I-821D?” section of the instructions for more information.)

(3) Arrived in the United States before the age of 16;

(4) You were born after June 15, 1981 (i.e., You were not age 31 or older on June 15, 2012);

(5) Have continuously resided in the United States since June 15, 2007, up to the present time;

(6) Were present in the United States on June 15, 2012; and

(7) Are currently in school, graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or that you are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces.

2. What Additional Documents Should You Submit if You Are Currently or Have Been in Removal Proceedings?

Submit a copy of the removal order or any document issued by the immigration judge or the final decision of the Board of Immigration Appeals (BIA), if available. If you have not been in removal proceedings, this question does not apply to you.

3. What Documents Do You Need to Provide to Prove Identity?

Submit copies of any of the following:

a. Passport;

b. Birth certificate accompanied by photo identification;

c. Any national identity document from your country of origin bearing your photo and/or fingerprint;

d. Any U.S.-government immigration or other document bearing your name and photograph (e.g., Employment Authorization Documents (EADs), expired visas, driver’s licenses, non-driver cards, etc.);

e. Any school-issued form of identification with photo;

f. Military identification document with photo; or

g. Any other document that you believe is relevant.

4. What Documents May Show That You Came to the United States Before Your 16th Birthday?

Submit copies of any of the following documents:

a. Passport with an admission stamp indicating when you entered the United States;

b. I-94/I-95/I-94W Arrival/Departure Record;

c. Any Immigration and Naturalization Service (INS) or DHS document stating your date of entry (e.g., Form I-862, Notice to Appear);

d. Travel records, such as transportation tickets showing your dates of travel to the United States;

e. School records (transcripts, report cards, etc.) from the schools that you have attended in the United States, showing
the name(s) of the schools and periods of school attendance;

f. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;

g. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding); or

h. Any other document that you believe is relevant.

5. What Documents May Show You Were In Unlawful Status as of June 15, 2012? (Not applicable if you entered without inspection and were never in removal proceedings.)

Submit copies of any of the following documents:

a. I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired;

b. If you have a final order of exclusion, deportation, or removal issued as of June 15, 2012, submit a copy of that order and related charging documents, if available;

c. An INS or DHS charging document placing you into removal proceedings, if available; or

d. Any other document that you believe is relevant to show that as of June 15, 2012, you were present in the United States after your lawful status had expired.

6. What Documents May Demonstrate That You Were Present in the United States on June 15, 2012?

Submit copies of any relevant documents such as:

a. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service;

b. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, State verification of the filing of state income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business);

NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters must include: your address(es) at the time of employment, exact period(s) of employment, period(s) of layoff, and duties with the employer. Letters must also be signed by the employer and include the employer’s contact information.

c. School records (transcripts, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance;

d. Military records (e.g., Form DD-214, Certificate of Release or Discharge from Active Duty; NGB Form 22, National Guard Report of Separation and Record of Service; military personnel records; or military health records);

e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;

f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding);

g. Money order receipts for money sent in or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or

h. Any other relevant document.

7. What Documents May Demonstrate That You Are Either: a) in School in the United States at the Time of Filing; or b) Have Graduated or Received a Certificate of Completion from a U.S. High School; or c) Have Obtained a General Education Development Certificate in the United States? (If applicable)

Submit copies of the following documents:

a. School records (transcripts, report cards, etc.) from the school that you are currently attending in the United States, showing the name(s) of the school(s) and periods of school attendance and the current educational or grade level;

b. Your U.S. high school diploma or certificate of completion;

c. Your U.S. GED certificate; or

d. Any other relevant document.

8. What Documents May Demonstrate That You Are an Honorably Discharged Veteran of the Coast Guard or Armed Forces of the United States? (If applicable)

Submit copies of the following documents:

a. Form DD-214, Certificate of Release or Discharge from Active Duty;

b. NGB Form 22, National Guard Report of Separation and Record of Service; c. Military personnel records;

d. Military health records; or

e. Any other relevant document.

9. What Documents May Show That You Continuously Resided in the United States during the 5-Year Period Immediately Before June 15, 2012, and Up to the Present Date?

Submit copies of any relevant documents such as:

a. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service;

b. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, State verification of the filing of state income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business);

NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters must include: your address(es) at the time of employment, exact period(s) of employment, period(s) of layoff, and duties with the employer. Letters must also be signed by the employer and include the employer’s contact information.

c. School records (transcripts, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance;

d. Military records (e.g., Form DD-214, Certificate of Release or Discharge from Active Duty; NGB Form 22, National Guard Report of Separation and Record of Service; military personnel records; or military health records);e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;

f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding);

g. Money order receipts for money sent in or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or

h. Any other relevant document.

10. Do Brief Departures Interrupt Continuous Residence?

A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

a. The absence was short and reasonably calculated to accomplish the purpose for the absence;

b. The absence was not because of an order of exclusion, deportation, or removal;

c. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure
before you were placed in exclusion, deportation, or removal proceedings; and

d. The purpose of the absence and/or your actions while outside of the United States were not contrary to law.

In Part 2. Arrival/Residence Information, list all your absences from the United States since June 15, 2007. Include information about all your departure and return dates, and the reason for your departure(s).

Documents you can submit that may show your absence was brief, casual, and innocent include, but are not limited to:

a. Plane or other transportation tickets or itinerary showing the travel dates;

b. Passport entries;

c. Hotel receipts showing the dates you were abroad;

d. Evidence of the purpose of the travel (e.g., you attended a wedding or funeral);

e. Copy of advance parole document; and

f. Any other evidence that could support a brief, casual, and innocent absence.

11. What Other Factors Will USCIS Consider When Making a Determination on Deferred Action?

USCIS will also conduct a background check. USCIS may consider deferring action in your case even if you have been arrested or detained by any law enforcement officer and charges were filed, or if charges were filed against you without an arrest. USCIS will evaluate the totality of the circumstances in reaching a decision on deferred action.

In accordance with the Secretary’s memorandum, if USCIS determines that you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or that you otherwise pose a threat to national security or public safety, USCIS is unlikely to consider you for an exercise of deferred action. See Frequently Asked Questions (www.uscis.gov/childhoodarrivals).

Even if you satisfy the threshold criteria for consideration of deferred action for childhood arrivals, USCIS may deny your request if it determines, in its unreviewable discretion, that an exercise of prosecutorial discretion is not warranted in your case.

12. What Else Should You Submit with Form I-821D?

USCIS will not consider deferring action in your case unless your Form I-821D is accompanied by Form I-765 with fees, and Form I-765WS. The filing fee for the Form I-765 is $380. In addition, you must submit a biometrics fee of $85 as set forth in the instructions to the Form I-765. Neither the filing fee for the I-765, nor the biometrics fee can be waived. If you do not include Form I-765 with all applicable fees with Form I-821D, your entire submission will be rejected.

Note: Individuals requesting consideration of deferred action for childhood arrivals will be sent a notice scheduling them to appear at an Application Support Center to provide fingerprints, photographs, and signatures (biometrics collection). Failure to comply with this notice may result in the denial of your deferred action as a childhood arrival request.

What Is the Filing Fee?

There is no filing fee for Form I-821D. However, you must submit both filing and biometric services fees with Form I-765. Please read Form I-765 filing instructions for complete information (www.uscis.gov/I-765).

Where to File?

Please visit the USCIS Web site at www.uscis.gov/I-821D or contact the USCIS National Customer Service Center at 1-800-375-5283 for the most current information about where to file this request. For TDD (hearing impaired) call: 1-800-767-1833.

E-Notification

You may elect to receive an e-mail and/or text message notifying you that your form has been accepted. To do so, you must complete Form G-1145, E-Notification of Application/Petition Acceptance, and clip it to the first page of your application. To download a copy of Form G-1145, including the instructions, refer to www.uscis.gov/G-1145. The Form G-1145 is activated after the form has been processed at the Lockbox facility and the receipt notice has been issued.

Address Change

If you have changed your address after filing this request, you must inform USCIS within 10 days of moving to your new address. For information on filing a change of address go to the USCIS Web site at www.uscis.gov/addresschange or contact the USCIS National Customer Service Center at 1-800-375-5283. For TDD (hearing impaired) call: 1-800-767-1833.

NOTE: Do not submit a change of address request to the USCIS Lockbox facilities because the USCIS Lockbox facilities do not process change of address requests.

Processing Information

Initial Processing

After your Form I-821D has been accepted, USCIS will check it for completeness, including submission of the required initial evidence, and send you a receipt notice. If you do not completely fill out the form and required information, or file it without the required initial evidence, USCIS may refuse to consider deferring action in your case.

Requests for More Information

USCIS may request more information or evidence, or we may request that you appear at a USCIS office. We may also request that you submit the originals of any copy. We will return these originals when they are no longer required.

If the same documents are required for both Form I-821D and Form I-765 that are filed together, the documents only have to be submitted once.

Decision

USCIS will review your request to determine whether the exercise of prosecutorial discretion is appropriate in your case. Each case will be considered on an individual, case-by-case basis. Even if you satisfy the threshold criteria for consideration of deferred action for childhood arrivals, USCIS may determine, in its unreviewable discretion, that deferred action is not warranted in your case. You will be notified of the decision in writing. There is no appeal or motion to reopen/reconsider the decision.

Information provided in this request is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/ NTA). The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request itself, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing clause covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

As an alternative to waiting in line for assistance at your local USCIS office, you can now schedule an appointment through the USCIS Internet-based system, InfoPass. To access the system, visit the USCIS Web site. Use the InfoPass appointment scheduler and follow the screen prompts to set up your appointment. InfoPass generates an electronic appointment notice that appears on the screen.
Penalties

If you knowingly and willfully falsify or conceal a material fact or submit a false document with Form I-821D, we will deny your Form I-821D and may deny any pending or future immigration benefit request or other request for services. In addition, individuals may be placed into removal proceedings, face severe penalties provided by law, and be subject to criminal prosecution.

  • Is Your Request Complete?
  • Did you submit Form I-765 along with the filing and biometric services fees ($465) total required for the application for employment authorization and did you also submit a completed Form I-765WS?
  • Did you answer each question?
  • Did you provide an original, handwritten signature and date your request?
  • Did you submit the necessary documents?
  • Did you submit evidence to show that you came to the U.S. while under the age of 16?
  • Did you submit evidence to prove identity, date of initial entry, and continuous residence from June 15, 2007, (or earlier) up to the present time?
  • Did you submit evidence that you are currently in school, have a GED certificate, have graduated or received a certificate of completion from high school, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?
  • If you were issued a final order, did you include a copy of that final order (if available)?
  • If your removal proceedings were terminated by an immigration judge, did you include a copy of the immigration judge’s termination order?
  • Did you provide evidence showing that, as of June 15, 2012, you were present in the United States after your lawful status had expired?

___________________________________

I-821D, Consideration of Deferred Action for Childhood Arrivals

Purpose of Form :
To request that USCIS consider deferring action, on a case-by-case basis, based on guidelines described in the Secretary of Homeland Security’s memorandum issued June 15, 2012. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time. Individuals filing Form I-821D must also file Form I-765, Application for Employment Authorization, and Form I-765WS, Form I-765 Worksheet.
Number of Pages :
Form 6; Instructions 9.
Edition Date :
8/15/2012
Where to File :
Where you file depends on your state of residence; check our Filing Addresses for Consideration of Deferred Action for Childhood Arrivals for the correct mailing address.
Filing Fee :
The total fee for forms I-821D, I-765 and the I-765WS is $465. This fee includes a $380 form fee for the I-765 and an $85 biometric services fee.
Special Instructions :
 Since you will file your forms at a USCIS Lockbox facility:

To ensure your request is accepted for processing:

  • Sign the forms.
  • Submit the correct fees.
  • Send the documentation required by the form instructions.
  • Ensure you complete these required form fields:

Form I-821D:

  • Family Name
  • Address
  • Date of Birth

Form I-765:

  • Name
  • Address
  • Date of Birth
  • Eligibility Category

Complete Form I-765WS.

Posted in Chicago attorney Deferred Action for Childhood Arrivals, Chicago lawyer Deferred Action for Childhood Arrivals, Consideration of Deferred Action for Childhood Arrivals, Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Direct Filing Addresses for Form I-821D, Dream Act, How to Fill Out Form I-821D, Illinois DREAM Act, Instructions for Consideration of Deferred Action for Childhood Arrivals, Instructions for filling out I-821D, Prosecutorial discretion, U.S. Citizenship and Immigration Services, USCIS Begins Accepting Requests for Consideration of Deferred Action for Childhood Arrivals, Who May File Form I-821D? | Tagged , , | Leave a comment

DHS Outlines Deferred Action for Childhood Arrivals Process

Posted on August 3, 2012 by Mike Baker

Do you qualify? Click here to see the Brochure; and here to see the Flowchart posted by USCIS on its website.

USCIS provides a number of humanitarian programs and protection to assist individuals in need of shelter or aid from disasters, oppression, emergency medical issues and other urgent circumstances.  Deferred Action Process for Young People Who Are Low Enforcement Priorities is 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. They will be considered for relief from removal from the country or entered into removal proceedings.   Over the past three years, the Obama Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines.  Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

USCIS to begin accepting requests for consideration of deferred action on August 15, 2012. On June 15, Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. U.S. Citizenship and Immigration Services (USCIS) is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.

USCIS expects to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15, 2012. USCIS will then immediately begin accepting requests for consideration of deferred action for childhood arrivals.

Information includes the following highlights:

  • Requestors – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS.
  • Requestors will use a form developed for this specific purpose.
  • Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.
  • All requestors must provide biometrics and undergo background checks.
  • Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.
  • The four USCIS Service Centers will review requests.

Consideration of Deferred Action for Childhood Arrivals Process

Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines.  Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

You may request consideration of deferred action for childhood arrivals if you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Individuals may begin to request consideration of deferred action for childhood arrivals on August 15, 2012.  Please do not file before August 15.  If you file early, your request will be rejected.  Individuals can call USCIS at 1-800-375-5283 with questions or to request more information on the deferred action for childhood arrivals process or visit www.uscis.gov.

Frequently Asked Questions

  • About Deferred Action for Childhood Arrivals
  • Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals
  • Filing Process
  • Evidence
  • Cases in Other Immigration Processes
  • Avoiding Scams and Preventing Fraud

About Deferred Action for Childhood Arrivals

What is deferred action?
Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.
Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time at the agency’s discretion.

What is deferred action for childhood arrivals?
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.

If my case is deferred, am I in lawful status for the period of deferral?
No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.

There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States.  Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.

Does deferred action provide me with a path to permanent residence status or citizenship?
No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?
No. The new process is open only to those who satisfy the guidelines. As such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process, may not be considered for deferred action as part of this process unless they independently satisfy the guidelines.

Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
This process is only for individuals who meet the specific guidelines announced by the Secretary. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Does this Administration remain committed to comprehensive immigration reform?
Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?
Yes.The Secretary’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals

What guidelines must I meet to be considered for deferred action for childhood arrivals?
Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

How old must I be in order to be considered for deferred action under this process?

  • If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
  • If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.
  • In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Do brief departures from the United States interrupt the continuous residence requirement?
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

  1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
  2. The absence was not because of an order of exclusion, deportation, or removal;
  3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
  4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

May I travel outside of the United States before USCIS has determined whether to defer action in my case?
No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see above).

Note:  If you are in unlawful status and/or are currently in removal proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.

Travel Guidelines

Travel Dates Type of Travel Does it Affect Continuous Residence
Before August 15, 2012
  • brief
  • casual
  • innocent
 No
  • For an extended time
  • Because of an order of exclusion, deportation, or removal
  • To participate in criminal activity
 Yes
After August 15, 2012 and before you have requested deferred action
  • Any
 Yes.Yes. You cannot travel while your request is under review.
You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case.
After August 15, 2012 and after you have requested deferred action
  • Any

 

If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the United States?
Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of 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.

What offenses qualify as a felony?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

What offenses constitute 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 one year or less but greater than five days) and that meets the following criteria:

  1. Regardless of the 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; or,
  2. 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.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of three months or less.

What offenses constitute a non-significant misdemeanor?
For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. Is not 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; and
  2. Is one for which the individual was sentenced to time in custody of 90 days or less.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.  Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances.  Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?
A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.

It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.

Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?
No.  Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.

Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?
Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.

What qualifies as a national security or public safety threat?
If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)?
No. You can only request consideration of deferred action for childhood arrivals under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012.

If I am not in removal proceedings but believe I meet the guidelines for an exercise of deferred action under this process, should I seek to place myself into removal proceedings through encounters with CBP or ICE?
No. If you are not in removal proceedings but believe that you meet the guidelines you should submit your request for consideration of deferred action for childhood arrivals to USCIS under the process outlined below.

Filing Process

How do I request consideration of deferred action for childhood arrivals?
Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms and will be submitting them to the Office of Management and Budget (OMB) for review.  Pending OMB clearance, the forms and instructions will be available on the USCIS website on August 15, 2012.  Do not submit any request to USCIS before these forms are available. All requests received before August 15, 2012, will be rejected.

Note: All individuals meeting the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), will affirmatively request consideration of deferred action for childhood arrivals from USCIS through this process. Individuals who are currently detained and believe they meet the guidelines should not request deferred action from USCIS but should identify themselves to their detention officer.

Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?
Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for deferred action for childhood arrivals except where DHS determines there are exceptional circumstances.

What do background checks involve?
Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.

If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?
If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear.

Can I obtain a fee waiver or fee exemption for this process?
There are no fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:

  • You are under 18 years of age, homeless, in foster care or otherwise lacking any parental or other familial support, and your income is less than 150% of the U.S. poverty level.
  • You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
  • You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level.

Beginning August 15, 2012 additional information on how to make your request for a fee exemption will be available on www.uscis.gov/childhoodarrivals. Your request must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence USCIS will:

  • Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.
  • Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.
  • Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.
  • Address factual questions through requests for evidence (RFEs).

Will there be supervisory review of decisions by USCIS under this process?
Yes. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.

Can I appeal USCIS’s determination?
No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations. You may request a review using the Service Request Management Tool (SRMT) process if you met all of the process guidelines and you believe that your request was denied due to one of the following errors:

  • USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or
  • USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before the issuance of the Request for Evidence.

Can I extend the period of deferred action in my case?
Yes. Unless terminated, individuals whose case is deferred pursuant to the consideration of deferred action for childhood arrivals process will not be placed into removal proceedings or removed from the United States for a period of two years. You may request consideration for an extension of that period of deferred action. As long as you were not above the age of 30 on June 15, 2012, you may request a renewal after turning 31. Your request for an extension will be considered on a case-by-case basis.

If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?
Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization.

Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
Yes. USCIS personnel responsible for considering requests for consideration of deferred action for childhood arrivals will receive special training.

Evidence

What documentation may be sufficient to demonstrate that I came to the United States before the age of 16?
Documentation sufficient for you to demonstrate that you came to the United States before the age of 16 may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I have resided in the United States for a least five years preceding June 15, 2012?
Documentation sufficient for you to demonstrate that you have resided in the United States for at five years immediately preceding June 15, 2012, may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I was physically present in the United States as of June 15, 2012?
Documentation sufficient for you to demonstrate that you were physically present on June 15, 2012, the date the memorandum was issued, may include, but is not limited to: financial records, medical records, school records, employment records, and military records.  Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?
Documentation sufficient for you to demonstrate that you are currently in school, have graduated from high school, or have obtained a GED certificate may include, but is not limited to: diplomas, GED certificates, report cards, and school transcripts. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

What documentation may be sufficient to demonstrate that I am an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?
Documentation sufficient for you to demonstrate that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States may include, but is not limited to: report of separation forms, military personnel records, and military health records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals?
Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for deferred action for childhood arrivals.
However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking:

  • A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and
  • A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence, indicating that further evidence must be submitted to demonstrate that you meet these guidelines.

USCIS will not accept affidavits as proof of satisfying the following guidelines:

  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
  • You were physically present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You were under the age of 31 on June 15, 2012; and
  • Your criminal history, if applicable.

If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a Request for Evidence, indicating that you have not demonstrated that you meet these guidelines and that you must do so in order to demonstrate that you meet that guideline.

Will USCIS consider circumstantial evidence that I have met certain guidelines?
Circumstantial evidence may be used to establish the following guidelines and factual showings if available documentary evidence is insufficient or lacking and shows that:

  • You were physically  present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and
  • Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines to demonstrate that you:

  • Were under the age of 31 on June 15, 2012; and
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this guideline.

Cases in Other Immigration Processes

Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?
Yes.  If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or EOIR as of June 15, 2012, but had no lawful status, you may request consideration of deferred action for childhood arrivals.

Can I request consideration of deferred action for childhood arrivals from USCIS if I am in immigration detention under the custody of ICE?
No.  If you are currently in immigration detention, you may not request consideration of deferred action for childhood arrivals from USCIS. If you think you may meet the guidelines of this process, you should identify yourself to your detention officer or contact the ICE Office of the Public Advocate so that ICE may review your case.  The ICE Office of the Public Advocate can be reached through the Office’s hotline at 1-888-351-4024 (staffed 9 a.mm – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov

If I am about to be removed by ICE and believe that I meet the guidelines for consideration of deferred action for childhood arrivals, what steps should I take to seek review of your case before removal?
If you believe you can demonstrate that you meet the guidelines and are about to be removed, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

If individuals meet the guidelines for consideration of deferred action for childhood arrivals and are encountered by Customs and Border Protection (CBP) or ICE, will they be placed into removal proceedings?
This policy is intended to allow CBP and ICE to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, if an individual meets the guidelines of this process, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed. If individuals believe that, in light of this policy, they should not have been placed into removal proceedings, contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals even if you have accepted an offer of administrative closure or termination under the case-by-case review process. If you are in removal proceedings and have already been identified as meeting the guidelines and warranting discretion as part of ICE’s case-by-case review, ICE already has offered you deferred action for a period of two years, subject to renewal.

If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you declined an offer of administrative closure under the case-by-case review process.

If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process?
Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you were not offered administrative closure following review of you case as part of the case-by-case review process.

How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?
If you meet the guidelines and have been served a detainer, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate either through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.

Avoiding Scams and Preventing Fraud

Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money. Visit our Avoid Scams page to learn how you can protect yourself from immigration scams.

Make sure you seek information about requests for consideration of deferred action for childhood arrivals from official government sources such as USCIS or the Department of Homeland Security. If you are seeking legal advice, visit our Find Legal Services page to learn how to choose a licensed attorney or accredited representative.

What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.

Find this page at www.uscis.gov/childhoodarrivals

Last updated: 08/03/2012
Posted in Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Status, Dream Act, Illinois DREAM Act, Prosecutorial discretion, significant misdemeanors | Leave a comment

Notice Regarding USCIS Centralized Filing for Waivers of Inadmissibility

Posted on August 2, 2012 by Mike Baker

Since June 4, 2012, individuals outside the U.S. who have been found inadmissible for certain visas by a U.S. consular officer and seek to waive an inadmissibility ground should no longer apply for a waiver at their foreign location, but should file requests directly to U.S. Citizenship and Immigration Services (USCIS) by mailing the application to a USCIS Lockbox facility in the United States. This change only affects situations where individuals outside the U.S., who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must file their waiver applications. These waiver applications are adjudicated at the USCIS Nebraska Service Center (NSC).

The change affects filings for:

Individuals in Mexico who seek to file a waiver application continue to have the option to file with the local USCIS Field Office in Ciudad Juarez, Mexico, in addition to the Lockbox, during a transition period until Dec. 4, 2012. However, those who choose to file their waiver applications at the Lockbox will experience certain advantages, such as:

Faster filing: Applicants can file a waiver application immediately after the consular interview. An applicant who files with the Lockbox does not need to wait for an appointment at a USCIS Field Office to file the waiver application and will not need to travel to the USCIS office.

Shorter processing time: The NSC’s goal is to process the waiver applications within 3 months.

Ability to track the progress of an application: Applicants who file waiver applications through the Lockbox can view the progress of their application online. This service is not available to applicants who file their waiver applications at USCIS international field offices.

Posted in Centralized Filing for Waivers of Inadmissibility, Ciudad Juarez, I-212, I-601, Waivers of Inadmissibility | Leave a comment

BIA Finds Municipal Court Judgment in Genuine Criminal Proceedings Is a “Conviction” and Marijuana Possession After Such a Conviction Is an Aggravated Felony: Matter of Cuellar-Gomez

Posted on August 2, 2012 by Mike Baker

The Board of Immigration Appeals (BIA or Board) in Matter of Cuellar-Gomez, 25 I. & N. Dec. 850 (B.I.A. July 18, 2012), held that (1) a formal judgment of guilt of an alien entered by a municipal court is a “conviction” under INA § 101(a)(48)(A) [8 USCA § 1101(a)(48)(A)] (2006) if the proceedings in which the judgment was entered were genuine criminal proceedings, (2) a Wichita, Kansas, municipal ordinance which recapitulates a Kansas statute prohibiting marijuana possession is a “law or regulation of a State … relating to a controlled substance” under INA § 237(a)(2)(B)(i) [8 USCA § 1227(a)(2)(B)(i)](2006), and (3) possession of marijuana after a prior municipal ordinance conviction for marijuana possession in violation of former §§ 65-4162(a) and (b) of the Kansas Statutes Annotated is an aggravated felony under INA § 101(a)(43)(B) [8 USCA § 1101(a)(43)(B)] by virtue of its correspondence to the federal felony of “recidivist possession,” 21 USCA § 844 (2006), provided that the prior conviction was final when the second offense was committed. Accordingly, the Board dismissed the respondent’s appeal from an immigration judge’s (IJ’s) decision ordering him removed from the U.S. as an alien convicted of an aggravated felony and a controlled substance violation under INA §§ 237(a)(2)(A)(iii) and (B)(i) , respectively.

The respondent, a native and citizen of El Salvador, was admitted to the U.S. on April 4, 1992, as a lawful permanent resident. On January 3, 2008, a municipal court in Wichita, Kansas, found him guilty of possessing marijuana in violation of § 5.26.010 of the Wichita, Kansas, Code of Ordinances, a misdemeanor for which he was sentenced to 60 days in jail and ordered to pay a $100 fine. On September 29, 2008, a Kansas district court found the respondent guilty of possessing marijuana after a prior municipal ordinance conviction for marijuana possession, a felony violation under Kan. Stat. Ann. § 65-4162(a) and (b), for which he was sentenced to a 10-month term of imprisonment plus probation on December 4, 2008.

Based on these convictions, the Department of Homeland Security (DHS) initiated removal proceedings, charging the respondent with deportability under INA § 237(a)(2)(A)(iii) as an alien convicted of an “aggravated felony” and § 237(a)(2)(B)(i) as an alien convicted of *1442 a “violation of … any law or regulation of a State … relating to a controlled substance…, other than a single offense involving possession for one’s own use of thirty grams or less of marijuana.” Specifically, DHS alleged that the respondent’s conviction under Kan. Stat. Ann. § 65-4162(a) and (b) was for a “drug trafficking crime” under 18 USCA § 924(c) (2006) and, by extension, an aggravated felony under INA § 101(a)(43)(B) because it corresponds to “recidivist possession,” a felony punishable under the Federal Controlled Substances Act (CSA), 21 USCA § 844(a) (2006). DHS also maintained that each of the respondent’s convictions was for a violation of the law of a state relating to a controlled substance under INA § 237(a)(2)(B)(i) and that the existence of two such convictions precluded the respondent from qualifying for the exception to deportability available to aliens convicted of a “single offense” involving simple possession of 30 grams or less of marijuana. The IJ sustained both charges of removal and ordered the respondent removed.

On appeal, the respondent contended that the January 2008 judgment arising from his Wichita municipal court proceedings is not a valid predicate for either charge of removability and that his September 2008 conviction under Kan. Stat. Ann. § 65-4162(a) and (b) is insufficient, standing alone, to establish his removability. The respondent argued that the Wichita judgment is not a “conviction” within the meaning of INA § 101(a)(48)(A) or, alternatively, that, even if the Wichita judgment is a “conviction” for immigration purposes, it does not support the § 237(a)(2)(B)(i) charge because it was for violation of a municipal ordinance rather than “any law or regulation of a State.” Finally, the respondent contended that his Wichita judgment does not support the aggravated felony charge because it is not a valid predicate for a recidivist enhancement under 21 USCA § 844(a).

The BIA, in an opinion written by Board Member Roger Pauley for the panel, which included Board Members Garry D. Malphrus and Hugh Mullane, rejected each of the respondent’s contentions. First, the Board concluded that the judgment of guilty entered against the respondent in January 2008 by the municipal court is a “conviction” under the plain language of INA § 101(a)(48)(A) because it is “a formal judgment of guilt of the alien entered by a court.” In so holding, the Board rejected the respondent’s argument that the municipal judgment should be discounted for immigration purposes because the proceedings in which it was entered did not afford him all the constitutional rights that defendants are entitled to in genuine criminal proceedings. The Board pointed out that, under its precedents, a formal judgment of guilt entered by a court qualifies as a conviction under § 101(a)(48)(A) so long as it was entered in a “genuine criminal proceeding,” which is a proceeding that was “criminal in nature under the governing laws of the prosecuting jurisdiction.” The Board pointed out that in Kansas (1) municipal judges have the authority to enter judgments of guilt in marijuana possession cases and to impose fines or order incarceration, (2) the issue before the court is whether the prosecution has proved the charge beyond a reasonable doubt, and (3) under Kansas’ sentencing laws, a judgment of guilt entered by a municipal court is considered a valid conviction for purposes of calculating the defendant’s criminal history, all of which, the Board said, makes evident that the respondent’s Wichita judgment was entered in a “genuine criminal proceeding.” The Board rejected the respondent’s contention that he was denied his constitutional rights, noting that, while the municipal code provides for the appointment of counsel at public expense only if the judge determines that the defendant stands in jeopardy of incarceration and is financially unable to obtain his or her own lawyer, which the respondent contended was more restrictive than in matters before the Kansas district courts, there is no absolute right to appointed counsel in misdemeanor prosecutions, whether in Kansas district courts, Wichita municipal courts, or elsewhere. Moreover, the Board pointed out that the Supreme Court has predicated the right to appointed counsel upon the defendant being unable to afford to hire his or her own counsel and upon the possibility of imprisonment if convicted.

Similarly, the Board rejected the respondent’s contention that his municipal court proceedings were not genuinely “criminal” because they did not afford him the right to a jury trial since Kansas, like many other states, first tries offenses such as the respondent’s before a municipal court judge and, if the judge finds the defendant guilty, affords the defendant the right to appeal to a state district court for a trial de novo before a jury. The Board pointed out that U.S. Supreme Court has held that a two-tier system virtually identical to that applied in Kansas did not violate the accused’s constitutional right to a jury trial and the U.S. Court of Appeals for the Tenth Circuit has also specifically upheld the Kansas two-tier procedure in the face of a constitutional challenge.

Finally, the Board rejected the respondent’s contention that his Wichita conviction was unconstitutional because neither his counsel nor the court advised him of the potential immigration consequences of a conviction. The Board pointed out that it is well settled that neither IJs nor the Board can entertain collateral attacks on state court judgments and advised the respondent that his recourse for such a challenge is to seek postconviction relief in the Kansas courts.

The Board then turned to the respondent’s second contention–that the Wichita judgment is not a “conviction” for immigration purposes–which the Board also rejected. The Board pointed out that, like other municipalities, Wichita is not an independent sovereign but, rather, a “subordinate governmental instrumentalit[y] created by the State to assist in the carrying out of state governmental functions,” quoting Reynolds v. Sims, 377 U.S. 533, 575 (1964), and citing City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 437 (2002), which recognized that “local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion.” The Board concluded that the ambiguous reference in INA § 237(a)(2)(B)(i) to “any law or regulation of a State” most naturally encompasses laws promulgated by a state through its political subdivisions and that § 5.26.010 of the Wichita Code of Ordinances is thus “a law or regulation of a State” under § 237(a)(2)(B)(i) because it is an expression of the organic sovereign power of the State of Kansas.

The Board further rejected the respondent’s attempt to distinguish Wichita’s ordinances based on the “Home Rule” amendment to the Kansas Constitution, which the respondent contented made the Wichita ordinances independent from Kansas law and hence not laws of the State of Kansas. The Board acknowledged that the “Home Rule” Amendment empowers Kansas municipalities to enact ordinances that supplement or complement the criminal laws passed by the state legislature, but stressed that municipalities cannot pass ordinances that are preempted by uniformly applicable state criminal laws. Hence, the Board concluded that the municipal ordinances supplement or complement the laws passed by the state legislature and are still laws of the state because they are ultimately the expression of state sovereignty. Further, the Board said, in any event, the ordinance at issue merely recapitulates the generally applicable Kansas law relating to marijuana possession so there was no need for the Board to decide whether an alien could be rendered deportable under INA § 237(2)(2)(B)(i) on the basis of a municipal conviction for an offense with no analog in the state criminal code. The Board also rejected the respondent’s attempt to characterize Wichita’s ordinances as standing in the same relationship to Kansas law as Kansas statutes do to federal law, observing that, while the Home Rule Amendment gives municipalities substantial autonomy in regulating their own affairs, Wichita nevertheless remains a creature of Kansas law, exercising its authority through a delegation of state sovereignty, whereas Kansas stands on equal footing with the federal government and is sovereign with respect to all matters not explicitly reserved to the federal government by the Constitution.

Before turning to the respondent’s third and final argument–that his Wichita judgment does not support the aggravated felony charge because it is not a valid predicate for a recidivist enhancement under 21 USCA § 844(a)– the Board considered and rejected the respondent’s contention that interpreting the phrase “any law or regulation of a State” to include municipal ordinances would run afoul of the presumption that Congress acts deliberately when it includes particular language in one section of a statute but omits it in another section of the same act. The respondent based this argument upon the fact that two provisions in INA § 237(a) reference state and local laws disjunctively. The respondent contended that these specific references to local laws or ordinances give rise to the negative inference that Congress deliberately omitted such references from the language of § 237(a)(2)(B)(i). The Board rejected this suggestion because the provisions at issue here–§ 237(a)(2)(B)(i) on one hand and § 237(a)(2)(E)(i) and (6)(A) on the other– bear scant resemblance to one another as they pertain to entirely different subject matter areas and are grammatically and syntactically dissimilar. Hence the Board concluded that the language of § 237(a)(2)(E)(i) and (6)(A) is not a reliable index of the legislative intent underlying § 237(a)(2)(B)(i). In addition, the Board pointed out that the relevant language of § 237(a)(2)(B)(i) was codified 10 years before the enactment of §§ 237(a)(2)(E)(i) and (6)(A), and it is well settled that later-enacted laws do not declare the meaning of earlier law. Finally, the Board said, interpreting § 237(a)(2)(B)(i) to encompass municipal ordinances does not render the specific references to local laws or ordinances in §§ 237(a)(2)(E)(i) and (6)(A) superfluous since those provisions were enacted as part of the 1996 comprehensive amendments to the INA and there “is every reason to believe that the language of the [1996] amendments included specific references to local laws, not because Congress considered local laws to be distinct from State laws, but rather because Congress wished to remove all doubt as to the breadth of its intentions, thereby mitigating the risk that reviewing courts and administrative adjudicators would construe its language narrowly.”

Accordingly, the Board concluded that the respondent’s January 2008 Wichita conviction for marijuana possession renders him deportable as an alien convicted of a violation of any law or regulation of a state relating to a controlled substance and, because the respondent also sustained a second marijuana possession conviction in September 2008, he is not covered by the exception to deportability for an alien convicted of a “single offense involving possession for one’s own use of thirty grams or less of marijuana.”

Turning to the respondent’s final argument–that his Wichita conviction was not for an aggravated felony rendering him ineligible for cancellation of removal and most other forms of relief–the Board noted that INA § 101(a)(43)(B) defines the term “aggravated felony” to include “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of title 18)” and that 18 USCA § 924(c)(2) in turn *1444 defines a “drug trafficking crime” to mean “any felony punishable under,” inter alia, “the Controlled Substances Act (21 U.S.C. 801 et seq.).” The Board also pointed out that the U.S. Supreme Court has held that a state drug offense qualifies as a “drug trafficking crime”–and, by extension, an aggravated felony–if its elements correspond to or include all the elements of an offense that carries a maximum term of imprisonment exceeding one year under the CSA  and that recidivist simple possession offenses charged and prosecuted as such clearly fall within the definition of an aggravated felony. [FN8] Thus, the question before the Board was whether the respondent was convicted of a recidivist possession offense that was “charged and prosecuted as such.” The Board concluded that he was since (1) his September 2008 conviction under Kan. Stat. Ann. § 65-4162(a) and (b) resulted from proceedings in which he was charged and sentenced as a recidivist, (2) the judgment reflects that the respondent entered a plea of guilty and the court identified the offense of conviction as “Possession of Marijuana after Previous Conviction,” (3) for sentencing purposes, the court classified the crime as a severity level 4, nonperson felony, a denomination that was consistent only with a recidivism finding, and the elements of the respondent’s offense correspond to the elements of “recidivist possession” under the CSA, (5) the charge set forth in the complaint/information provided the respondent with the requisite notice that the state was seeking a recidivist enhancement against him and identified the prior conviction with particularity, and (6) Kansas drug defendants who dispute the existence or validity of prior convictions have a right to challenge the convictions and to require the government to prove those convictions to the sentencing judge.

The Board rejected the respondent’s argument that his Wichita conviction could not be a valid predicate for a recidivism charge under the CSA because 18 USCA § 844(a) requires that a prior conviction be for an offense “chargeable under the law of any State.” (Emphasis added by the Board.) The respondent again argued that his Wichita offense does not fit this description because it was prosecuted as a municipal ordinance violation rather than a violation of state law. The Board opined that the relevant inquiry was not whether the respondent was convicted under a particular state law but whether his offense of conviction was capable of being charged under such a law. The answer to that question, the Board said, was clearly “yes” as, under Kansas law, municipal and state courts have concurrent jurisdiction over offenses that violate both a city ordinance and a parallel state law, including misdemeanor marijuana possession offenses. Thus, even if it were to assume that a Wichita ordinance is not a “law of any State” within the meaning of the CSA, the respondent’s offense was nevertheless chargeable under such a law. Accordingly, the Board concluded that the respondent’s Wichita conviction is a valid predicate for a recidivist enhancement under 21 USCA § 844(a).

The Board also rejected the respondent’s argument that focusing on whether his offense could have been charged under state law is impermissible because it is a “hypothetical” inquiry of the sort proscribed by the Supreme Court in Carachuri-Rosendo v. Holder, 130 S. Ct. at 2586-89, pointing out that, in that case, the government treated Carachuri-Rosendo as if he had been “convicted” of all the elements of recidivist possession, even though recidivism had never been alleged or proven in his state trial, simply because a federal prosecutor could hypothetically have brought a recidivist possession charge against a person with his criminal history, whereas in the respondent’s case, he was treated as “convicted” of only those facts that were proven beyond a reasonable doubt (or admitted) in his Kansas criminal proceedings. Consequently, the Board said, the respondent was charged, convicted, and sentenced as a recidivist in Kansas, and whether his prior offense was “chargeable” under Kansas law is not a “hypothetical” or conjectural question but a factual and legal one, the answer to which is readily ascertained by reference to the state’s statutory and decisional law.

Having found that the respondent’s January 2008 Wichita conviction provided a valid factual basis for the removal charges leveled against him, rendering him removable as charged and ineligible for all requested relief, the Board dismissed his appeal.

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