Monday, October 20, 2014

Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients – Legal Issues

On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA). DACA recipients are entitled to apply for certain benefits, including permission to travel abroad for humanitarian, educational or employment purposes. A DACA recipient who seeks to temporarily leave and re-enter the U.S. must apply for what is known as advance parole. Advance parole allows an individual who is in the U.S. advance authorization to enter the U.S. after temporary travel abroad. USCIS has the authority to grant advance parole and issue an advance parole document on Form  I-512L. This documents allows a Customs and Border Protection (CBP) officer or other inspector at a U.S. port of entry to parole an individual into the U.S. However, the possession of an advance parole does not guarantee parole into the U.S. as the inspecting immigration official may deny parole at the port of entry.

Prior to applying for advance parole, an individual must apply for and receive a DACA approval. An individual is disqualified from DACA if he or she leaves the U.S. at any time after August 12, 2012 unless he or she is first granted both DACA and advance parole. To apply for advance parole, a DACA recipient must submit Form I-131 to the USCIS and must submit proof of DACA status. DACA recipients must provide as much evidence as possible to explain the purpose of their intended travel abroad. For a trip involving a humanitarian purpose, proper evidence may include a letter from a hospital or medical professional explaining a relative’s illness. Evidence that may be provided to support a request for travel for educational purposes may include a letter from an educational institution explaining the purpose of travel abroad. For a trip that is necessary due to employment, evidence may include a letter from an employer explaining the need to travel abroad. A single Form I-131 may be used to request permission to leave and reenter the U.S. multiple times. However, the DACA recipient must document that each trip is intended to serve a humanitarian, employment or educational purpose and explain why the DACA recipient needs to travel multiple times.

The issued advance parole document, Authorization for Parole of an Alien into the United States (I-512L) contains an expiration date by which the individual must present the document to the inspector at a port of entry in order to seek parole into the U.S.

Prior Removal Orders

It is very important that the DACA recipient consider several legal issues before traveling abroad with an advance parole.  The individual must determine whether he or she has an unexecuted deportation or removal order. If such an order exists, and if the DACA recipient were to depart the U.S. on advance parole, he or she would likely to be found to have executed the deportation/removal order and would face severe future immigration consequences, such as the inability to reenter the U.S. for a given period of time.

To avoid the above-mentioned harsh immigration consequences, a DACA recipient with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the Bureau of Immigration Affairs (BIA). Once removal proceedings are reopened, the removal order no longer exists. Then, the DACA recipient may move to administratively close or terminate the reopened proceedings. If the termination of proceedings or administrative closure is granted by the government, the DACA recipient may travel on advance parole without risking the consequences of an executed removal order.  

Unlawful Presence Bars

In addition, any decision regarding travel outside of the U.S.  by a DACA recipient should include an analysis of a DACA recipient’s unlawful presence in the U.S. to determine whether the recipient is subject to the 3- or 10-year inadmissibility bars of the Immigration and Nationality Act (INA). Individuals under the age of 18 do not accrue unlawful presence for purposes of these bars and DACA recipients are considered to be lawfully present in the U.S. during the DACA grant period. However, DACA recipients who applied for DACA after turning 18 and DACA recipients who departed the U.S. and reentered or attempted to reenter the U.S. without being admitted – including those who are under the age of 18 – will likely have accrued unlawful presence prior to obtaining DACA.

According to a recent BIA precedent decision, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) an individual who accrued unlawful presence under INA §212(a)(9)(B) prior to obtaining DACA and subsequently travels with advance parole, should not become subject to the unlawful presence ground of inadmissibility upon departure from the U.S.  The BIA held in this case that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under the INA. 

However, Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment of status to permanent residence applications, not DACA recipients. However, the USCIS Administrative Appeals Office (AAO) has subsequently applied this analysis in several cases involving individuals holding Temporary Protected Status (TPS). Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that they did not need waivers of inadmissibility.

While there has been no formal written guidance yet on this issue, it appears likely that the USCIS would apply the decision in Matter of Arrabally and Yerrabelly to DACA recipients.

Additional Inadmissibility Considerations

There are other inadmissibility considerations that DACA recipients must consider before they travel with advance parole and seek admission to the U.S. DACA recipients must consider whether they are subject to all of the inadmissibility grounds, except for those concerning documentation requirements, such as criminal inadmissibility grounds.

Impact of Travel on Future Immigration Benefits

A DACA recipient who is granted advance parole and returns to the U.S. in considered an applicant for admission.  If a DACA recipient travels abroad and returns under advance parole, she or he is “paroled” into the U.S. with the meaning of INA §245(a) and may qualify to apply for adjustment of status to permanent residence. However, this eligibility will probably only apply to those DACA recipients who qualify as “immediate relatives,” the spouse or child of a U.S. citizen or the parent of an adult U.S. citizen as immediate relatives of U.S. citizens may apply for adjustment of status to permanent residence despite having been employed without authorization or who have overstayed their lawful period of admission to the U.S.


The DACA recipient should confer with counsel before contemplating travel outside the U.S. on advance parole.

New York City Municipal ID Card

On July 10, 2014, the New York City identification bill was signed into law by Mayor Bill de Blasio. New York City Council Speaker Melissa Mark-Viverito said before the council voted on the measure, “It sends a simple and clear message that we are a city that believes in including everyone. We don’t accept that some people can be left out because of their immigration status, how they identify their gender or whether they may be homeless.”

The Municipal ID program offers a photo identification card for ALL residents of New York City. The card, which be available on January 1, 2015, will be free for the first year. The Municipal ID application site locations will be announced before January 2015. To receive the card, individuals must present proof of their identity and proof of residency. Under the program, individuals may use several different types of documents as proof. The photo IDs will display the holder’s name, birth date, address and -- at the cardholder’s option -- a self-designated gender.

ID cardholders will receive a series of benefits when the program begins in 2015. These benefits will include free tickets or discounts – most of them equivalent to a basic one-year membership - at 33 of the city’s leading museums, zoos, concert halls and botanical gardens, including the Metropolitan Museum of Art and the Bronx Zoo. Officials have also hinted that the cards will eventually provide discounts at movie theaters and more commercial entertainment venues. The city states that more details regarding the benefits associated with the Municipal ID card will be made available prior to the January 2015 program launch.

Similar cards have been created in Los Angeles, San Francisco and New Haven, Connecticut. New York’s program would be the largest in the U.S., costing $8.4 million when it goes into effect next year, decreasing to $5.6 million annually over the next three years, Ms. Mark-Viverito said.

The cultural benefits being offered to those who possess the ID cards should encourage activity among immigrants and other New Yorkers who may feel that they cannot afford to visit various cultural offerings such as the symphony or the ballet. The de Blasio administration hopes that the cards will be embraced by a large number of residents.     

Wednesday, January 15, 2014

New York DREAMs of State-Level Tuition for Undocumented Students

New York DREAMs of State-Level Tuition for Undocumented Students

             The federal DREAM Act proposes legislation for the Development, Relief, and Education of Alien Minors. But with the DREAM Act stuck in political gridlock on Capitol Hill, students and immigration advocacy organizations are renewing the fight for DREAM enactments at the state level, particularly in relation to financial aid for undocumented students. Notably in California, the DREAM Act found approval in the State Legislature and was signed by Governor Jerry Brown in 2011. Currently, 16 states offer college tuition for undocumented students who meet certain criteria. California alone supplies financial aid to the undocumented through the state’s own DREAM Act. The financial burden caused by ever-increasing tuition costs and low wages is a major obstacle for undocumented students eager to attend college. As demonstrated by U.S. Bureauof Labor Statistics data, workers who have college degrees (bachelor’s or advanced) earn almost twice as much as workers who don’t. Higher salaries generate more revenue from income tax and increased spending, which also means greater revenue from sales tax.
In New York State, U.S. citizens and permanent residents receive TAP (Tuition Assistance Program) funds when they meet eligibility criteria. Specifically excluded from TAP eligibility are undocumented students, as they do not meet the residency criteria under current laws. The New York State DREAM Act aims to extend TAP eligibility to undocumented students if they meet the following guidelines:
• Students must have attended high school for two years and graduated or have a New York State general equivalency diploma (GED).
• They must enroll in a college or university in New York State within five years of graduating from high school.
• Students must affirm they will apply for legal immigration status as soon as they are able to do so.

In addition to the aforementioned guidelines, undocumented students must also meet TAP requirements, which include:
• Enrollment as a full-time student taking 12 or more credits
• Declaration of a major by the second year of a two-year program or by the third year of a four-year program

• Maintenance of a C average

In order for a bill to pass in New York State, it must gain both Assembly and State Senate approval before being signed by the governor. In the midst of an economic recession, the New York State DREAM Act failed to garner the necessary support from the Republican base, as the expansion of TAP was deemed adversarial to Republican-backed austerity measures.
Critics of the NYS DREAM Act say that providing TAP to undocumented students is far too costly and would add to the mounting budget deficit. Despite their claim, research conducted by the Fiscal Policy Institute indicates that the expansion of TAP would require only $17 million in additional income tax revenue, which would amount to merely $.26 for taxpayers making $20,000 to $25,000, $.87 for taxpayers with incomes of between $45,000 and $50,000, and $4.92 for taxpayers making $150,000 to $200,000. This cost-benefit analysis highlights the clear advantage of passing the NYS DREAM Act.
Passage of the NYS DREAM Act benefits society not just economically but socially. Undocumented youth have been educated in the New York public school system and have grown up alongside their documented peers. Many are fully integrated members of society—eager to contribute and make a difference. Providing tuition assistance to undocumented immigrants yields a positive return on investment for the community as a whole.
Broadening access to higher education increases high school graduation rates and college enrollment for undocumented youth, which corresponds to a decrease in crime. Education leads to a safer society. Giving undocumented youth greater access to higher education encourages them to work ever harder in high school and obtain a diploma, making it less likely they’ll turn to crime.
The number of jobs that require a college diploma continues to expand, and it is important the state invests in higher education to meet this burgeoning job growth. There are currently many paths to obtaining work authorization, and even people without such authorization continue to contribute. A more educated population makes for increased job creation and, ultimately, innovation. A win-win for New York. 

Jung Rae Jang
Eve C Guillergan PLLC
Tel: (212) 279-9020