Deferred Action: what are the risks?
If you are considering a Deferred Action application, you are no doubt concerned with the risks associated with the program. All applicants must weigh the benefits of the program against the risks before moving forward. Different people may have different degrees of risk, but the ability to work legally and obtain a social security number could also change the course of an applicant’s future (and this future of his or her family). In the end, each person needs to make the decision for himself.
|•||Coming out of the shadows|
|•||Criminal issues and fraud|
|•||The possibility of an interview|
|•||If you are in removal proceedings or have a final order|
Coming out of the shadows
There is no question that applying for Deferred Action involves making yourself known to the U.S. government. To obtain a work permit, you will have to provide your fingerprints, photograph and biographical information to DHS. Could this information be used to deport you at some point in the future? And what about your family or your employer? Aren’t you exposing them to risk too?
DHS has committed to protecting all applicants’ personal information from disclosure to ICE or CBP for the purposes of immigration enforcement, unless they meet the criteria for being placed in removal proceedings. This commitment covers not only you but also your family members and/or guardians.
However, as a DACA applicant, your information could be shared with ICE, CBP, national security or law enforcement agencies for purposes other than deportation. USCIS might share your information with other agencies if:
- They need help in considering your request;
- They believe your application may be fraudulent;
- They are concerned that you might be a national security risk; or
- They are asked to assist with the investigation or prosecution of a criminal offense.
If your application for Deferred Action is denied, you will not necessarily be referred to ICE for removal proceedings. If your case does not include a criminal offense, fraud or a threat to national security or public safety, you will only be referred for removal if there are exceptional circumstances.
Even if you should be placed in removal proceedings, any information you have provided about family members or guardians will not be shared with ICE for purposes of immigration enforcement against them. This information will only be shared with other agencies for purposes other than removal.
If your employer provides information to help you establish your eligibility for DACA, DHS will not penalize them for employing you illegally unless they are an “egregious violator” of the law. An employer might be considered an egregious violator if they have employed many unauthorized immigrants over a long period of time.
In its official guidelines for DACA applicants, DHS clearly states that the current confidentiality policy may be modified, superseded or rescinded at any time. Even if the policy does not change, many people may find it difficult to trust the statements of an agency officially responsible for removing undocumented immigrants from the U.S.
It is also conceivable that the entire DACA program could be cancelled by a future president. Public opinion polls have shown that the majority of Americans believe that young people without legal status who were brought to the U.S. as children and have made the U.S. their home should not be punished for their parents’ actions. But even this is no guarantee that the program will continue. Only Congress has the ability to bring certainty to the program.
Criminal issues and fraud
If you have been convicted of a crime but believe you are still eligible for DACA, it is extremely important for you to consult with an experienced immigration attorney for help in assessing any additional risks in your case. The same is true if you have been arrested for a crime but have not yet been convicted, or if there are reasons why you might be suspected of gang activity.
Even if you and your family cannot be referred for deportation on the basis of the information you provide, there are potential risks to all of you if DHS detects significant criminal activity that needs to be investigated and potentially prosecuted.
DHS is also keenly focused on detecting fraud and misrepresentation in applications for Deferred Action. A finding of willful and material fraud or misrepresentation is based on the application of specific legal criteria to the facts of the case. The facts include everything sent with your application, and any information that comes to light during your background check. If there are inconsistencies or omissions, and USCIS believes that they are willful, you could be immediately placed in deportation proceedings.
The chance of an interview
When USCIS published detailed information about the Deferred Action process in August of 2012, it said that there would be no interviews for DACA candidates except a few for “quality control” purposes. Attorneys are now reporting that some of their clients are indeed being called for interviews.
There are several potential risks associated with appearing at USCIS for an interview. For some people, there could be a small risk of being referred to ICE for removal proceedings. Most applicants will be very nervous when they are questioned, and could answer certain questions in a way that could lead the officer to accuse them of fraud or misrepresentation. A candidate might also accidentally reveal information that is not pertinent to their DACA eligibility but could harm them when applying for future immigration benefits.
If you are in removal proceedings or have a final order
You must be especially careful when applying for Deferred Action if you already have a final order of removal. If your request for Deferred Action is denied, it is likely that ICE will be told to proceed with your removal.
If you are currently in removal proceedings, it is important for you to prepare a thorough and accurate request for Deferred Action. This may be the only way to stop your removal proceedings. Consulting an attorney is recommended, since there could be another kind of relief (like cancellation of removal or asylum) available to you that would be more permanent than DACA.
Navigating the risks
Only you can say how much risk is acceptable to you and your family. Even if your case is entirely straightforward, applying for Deferred Action means that you are accepting a certain degree of risk. If you have a final order of removal, are in removal proceedings, or your case has some complications, an attorney’s advice is essential for helping you determine whether and when you should apply for DACA.