Deferred Action Resource Center (Continued)

Brief, Casual Departures for Purposes of “Continuous Residence”

A “brief, casual, or innocent” absence from the U.S. will not interrupt continuous residence if it occurred before August 15, 2012 and meets the following requirements:

  • Short and reasonably calculated to accomplish purpose of trip
  • Absence not caused by order of removal, voluntary departure, or administrative grant of voluntary departure before placement in removal proceedings
  • Purpose of absence, actions while outside U.S. are not contrary to law

After August 15, 2012, applicants who travel outside the U.S. will not be eligible for deferred action. If your case is granted, you may only travel outside the U.S. by obtaining advance parole.

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Criminal Convictions May Bar Relief

Except for exceptional circumstances, certain convictions make you ineligible for relief:

  • Felony: federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year
  • Significant Misdemeanor: an offense, defined by federal law, for which maximum term of imprisonment is one year or less (but greater than five days) involving:
    • Domestic violence; sexual abuse or exploitation; burglary, unlawful possession or use of firearm; drug distribution or trafficking; driving under the influence
      • These offenses are “significant,” regardless of sentence imposed; or
    • An offense punishable by a sentence of 90 days or more in custody
      • Sentence must involve time served in custody,
      • Does not include suspended sentence or any time beyond criminal sentence for detention by Immigration and Customs Enforcement (ICE)
  • Three or More Misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct
  • Certain Fraud-Related Crimes such as use of fake social security number, falsified record of U.S. citizenship, voter registration, or application for government benefits

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Non-Significant Misdemeanors

  • Minor traffic offenses, driving without a license
  • Offenses characterized as felonies or misdemeanors under state immigration law
  • Expunged convictions and juvenile convictions do not automatically disqualify you

Nevertheless, it is important to remember that each application is reviewed on a case-by-case basis. DHS considers the totality of the circumstances in determining whether to grant a favorable exercise of discretion. This means that the absence or presence of a criminal history, as outlined above, is only a “factor” to consider; it does not necessarily guarantee relief.

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National Security or Public Safety Threat

Background checks may reveal disqualifying security or safety threats including:

  • Gang membership or affiliation
  • Participation in criminal activities
  • Activities that threaten the United States

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Obtaining a Driver’s License

Driver’s license requirements are governed by state law. Most states should recognize a grant of Deferred Action as a basis of eligibility under the Real ID Act.

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Confidentiality in the Application Process

According to USCIS, the names of family members, guardians, relatives, and other personal information will not be shared with ICE, Customs and Border Patrol, or other law enforcement authorities for purposes of initiating removal proceedings unless the agency finds that you:

  • Pose a threat to national security
  • Committed fraud in the application
  • Have been convicted of a criminal offense

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Deferred Action vs. DREAM Act

Deferred action is relief granted by DHS, part of the federal government’s executive branch. DHS has authority to make certain decisions about enforcement of immigration laws, but not the power to create immigration status. Deferred action therefore provides temporary relief, not a path to legal permanent resident (LPR) or U.S. citizenship (USC) status. Proposed provisions of the DREAM Act would grant eligible applicants a path to LPR or USC status, but must be passed by Congress to become law. Only the legislative branch has the power to enact laws.

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Consequences of Using a Fake Social Security Number

Even if you used a fake social security number, you will not be automatically disqualified. Your request will still be assessed on a case-by-case basis to determine whether you will receive a favorable exercise of prosecutorial discretion, based on your particular circumstances.

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A Qualified Immigration Attorney Can Help

Immigration proceedings are complicated. That is why it is very important that you and your family seek legal counsel from a qualified immigration law attorney and lawyer who is licensed to represent you in immigration proceedings. If you or your family need help applying for deferred action, or other types of immigration relief, call the Law Offices of Jacob J. Sapochnick at (866) 488-1554 today for a free consultation, or contact us online.

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