[Blogger's note: Tomorrow, August 15, 2012, is perhaps as momentous to DREAMers as D-Day, June 6, 1944, was to The Greatest Generation. The invasion of Normandy marked the end of World War II in Europe and the fall of a tyrannical Nazi regime that made mincemeat of the rule of law.
Though the comparison may seem hyperbolic to some, I remember well my first visit to the Holocaust Memorial Museum in Washington. As a lawyer, I was stunned by Hitler's atrocious perversion of the legal system, the issuance within a half-year after the Nazis' 1933 ascendancy to power of what would become roughly 400 decrees and regulations that "restricted all aspects of the public and private lives" of Jewish citizens.
Conversely, doors that have been legally shut to persons solely by virtue of their status are now to be opened a tad, as Julia Preston of The New York Times notes in today's edition. She reports on the Obama Administration's temporary clemency program, Deferred Action for Childhood Arrivals (DACA), which may lead to the grant of employment authorization for youthful entrants to America found worthy of discretionary de-escalation of enforcement by U.S. Citizenship and Immigration Services (USCIS):
The work permit young immigrants can receive with the deferral opens many doors that have been firmly shut. They can obtain valid Social Security numbers and apply for driver’s licenses, professional certificates and financial aid for college.
Thus, just like those for whom the Allied invasion of Normandy launched a new life, one transformed from the status of a nonperson to that of a free member of society, DACA stands as a tiny step in the direction of reversing the application of perverse laws. In this case the perversion of laws are found in America's Immigration and Nationality Act, a statute chockablock with befuddling provisions that punish innocent children for the mistakes of their parents.
USCIS has today issued DACA instructions and forms: Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, a Form I-765WS, a worksheet to establish one's economic need for employment, and a Form G-1145, E-Notification of Application/Petition Acceptance, and has published a DACA web page with FAQ along with a warning about "Avoiding Scams and Preventing Fraud." The agency also dove deep into the minutiae of the process in today's telephonic Public Engagement which answered many but by far not all questions. The engagement followed an earlier internal tussle within DHS over the contours and devilish details of the program reflected in a 92-page draft as reported recently by FoxNews.com ("DHS document shows Obama administration wrestling with 'DREAM Act' policy").
When it takes the government almost 100 pages to tussle internally over the fine points of a discretionary policy, the question arises whether a DACA applicant should be represented by legal counsel. Recently, in a YouTube video, two federal lawmakers, Senator Dick Durbin and Representative Luis Gutierrez, usually immigration-reform stalwarts, said a lawyer's help was unnecessary. Curiously, the link now reflects that "[this] video has been removed by the user."
Perhaps the takedown occurred because of a flood of postings that challenged the legislators' suggestion: See, Do DREAMers really need a lawyer? and Dreamers Do Need Lawyers and Obama's immigration changes cause confusion and Do You Need an Attorney to Apply for Deferred Action for Childhood Arrivals (DACA)?
My guest columnist, Karin Wolman, agrees that a lawyer's counsel and representation is necessary in DACA cases (as do I). I recall the mess created by the legacy immigration bureaucracy, Immigration and Naturalization Service, when it tried to interpret and implement a comparable change in policy, the 1986 legalization program, a misguided agency effort that spawned decades of litigation. So, DREAMers, don't take a chance. Even if you think your case is straightforward, get good referrals, and talk to a competent lawyer who regularly practices immigration law. Your life as a nonperson will end and your civil rights will be recognized only if you do DACA right.]
Durbin & Gutierrez Put DREAMers at Risk
By Karin Wolman
Senator Dick Durbin and Representative Luis Gutierrez released a video message to the DREAMers on August 6 that is one of the most irresponsible and dangerous public messages from a voice of authority in living memory. It is a deep disgrace that supposed champions and co-sponsors of the DREAM Act would advise young people who are eligible for Deferred Action for Childhood Arrivals, "Do Not Hire a Lawyer." Yet Sen. Durbin said those words, doing a huge disservice to the very vulnerable class of people they are ostensibly trying to help.
These elected representatives perpetuate a dangerous source of confusion between unscrupulous "notarios" who engage in the unauthorized practice of law, and licensed, trained attorneys who are subject to ethical rules and have the ability to advise DREAMers properly on the process and potential consequences of applying for Deferred Action for Childhood Arrivals.
An experienced immigration lawyer who has carefully reviewed the applicant's background and documents can ensure that DREAMers file applications which will have the best possible chance of success. This is why Senator Durbin's patently false claim that "Virtually everyone will be able to go through this process without a lawyer," is so disturbing. Perhaps he has already forgotten that the Deferred Action application process includes no right of appeal, and permits no motions to reopen. This is a one-shot opportunity. Applicants must get it right on the first try, or else they face a discretionary denial that is final and cannot be reviewed.
Perhaps Sen. Durbin and Rep. Gutierrez have also forgotten that both USCIS and ICE have extremely poor track records with respect to granting any forms of discretionary relief to applicants who are unrepresented by counsel. The memos of June 2011 from ICE Director John Morton authorized broad use of prosecutorial discretion for those already in proceedings who have no criminal convictions, but the rate at which such relief has been granted in immigration courts is less than 2%. Self-represented applicants who misunderstand any of the Deferred Action criteria and thus fail to interpret their own eligibility correctly, or who get the standard right but provide documentation that USCIS regards as insufficient, or who believe that the information they provide will remain confidential, may be placing themselves and their families at risk of deportation. These are some of the key reasons why it is so very important for DREAMers seeking Deferred Action for Childhood Arrivals to consult with a knowledgeable
immigration attorney or legal service organization, and why the message from Messrs. Durbin & Gutierrez will do real harm.
My post above, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman. Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree:
I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different. The historian in me.
I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.
I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth.