Dear Atty. Gurfinkel:
My family and I came to the US before 2007, to make a better life and future for our children, who then were still under 16 years of age. We overstayed and are now out of status. I’ve read about Deferred Action for Childhood Arrivals (DACA), which may allow my kids to have work authorization, driver’s license, etc., so they would not have to feel like “outcasts” in the US.. I believe that my children would be eligible but I am afraid that if I file for my kids, the USCIS may “come after” me, since their applications would have our address and that is why I don’t want to file for DACA benefits for my kids.
I truly love my kids, and I understand that, as a parent, I should sacrifice for their future. If they do file for DACA benefits, what are the risks to me?
Very truly yours,
T.P.
Dear T.P.:
First of all, I want to be clear that no one can ever provide a 100% “guarantee” that there will be absolutely no problems or risks in filing for DACA benefits. However, the USCIS has repeatedly stated that ordinarily, they will NOT use DACA applications to track down or go after either the DACA applicants or their family members (unless of course there are issues of fraud, criminal conduct, or terrorism). In other words, if the DACA applicant and his or her family members are “law-abiding” TNTs, USCIS has indicated that they will ordinarily be “left alone.”
For example, on its website, the USCIS has put out frequently asked questions (FAQs). Among the relevant questions are:
• “Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?” In response, USCIS states that the information provided is “protected from disclosure to US Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings… Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE.”
• “If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?” In response, USCIS stated that “…information related to your family members or guardians that are contained in your [DACA] request will not be referred to ICE for purposes of immigration enforcement against family members or guardians.”
• “If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?” In response, the USCIS states that “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.” Exceptional circumstances would obviously include fraud, criminal conduct, or terrorism.
As you can see from the USCIS own responses, while they have the authority and ability to place people in removal proceedings, as a general rule, they are not going to use DACA applications to go after applicants or their family members.
And think about it: in the past, there have been numerous other immigration laws, programs or benefits where people who were out of status had filed and still they were “left alone.” For example, with Section 245(i), there were hundreds of thousands of people who filed before the April 30, 2001 deadline, even though they were out of status. At that time, the USCIS (or Legacy INS) stated that it would not use 245(i) filings to go after those aliens. And, for the most part, that was the case.
Another example is if a green card holder is married to TNT, and is filing for naturalization, the person has to list his or her TNT spouse on the Naturalization Application, including the TNT spouse’s address and immigration status. I’ve really never come across a case where the USCIS had used a naturalization application (or the information contained in it) to go after the illegal spouse. USCIS left them alone, even though they were out of status.
Furthermore, there is another policy of DHS, called “prosecutorial discretion,” where even if a person is removable, unless they pose a risk to society, the DHS will, for the most part, leave them alone, and not spend time and resources trying to deport law abiding TNTs.
Most importantly, I have not yet come across a case where the USCIS, ICE, or CBP have gone after DACA applicants or their family members.
Finally, what also continues to amaze me is that while over 550,000 DACA applications have been submitted, only about 3,600 of those applications are from Filipinos!!! That is less than 1% of the filings!!!! Think about it: ordinarily, Filipinos are the #1 nationality that files for immigration benefits. That is why you have such lengthy backlogs or waiting times: so many Filipinos file petitions and applications! Now, here is a valid, legitimate immigration benefit, and yet Filipinos are not taking advantage of this marvelous opportunity???? If you came to the US for the benefit of your children, why are you denying your children this benefit?
Now you have no more excuses! I have quoted the USCIS responses that should remove your fears and that there is little risk to your safety, if you pursue DACA benefits for your children. And kids: maybe cut out this article, and put it on the ref, for your parents to read.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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