DACA Encourages Young Immigrants to Seek Legal Advice

In June of 2012, President Obama announced a policy called Deferred Action for Childhood Arrivals (DACA), which offers certain young undocumented immigrants an opportunity to apply for temporary work authorization and reprieve from removal for a two-year period.  This policy spurred many undocumented immigrants to seek legal advice who were otherwise fearful of telling anyone of their undocumented status.  During the process of speaking with experience attorneys about DACA, many individuals learned that they were also eligible for more permanent sources of relief.

Ever since the announcement of DACA, we have met with many young undocumented immigrants who not only qualified for DACA, but also for other immigration benefits.  A number of these individuals qualified for Special Immigration Juvenile Status (SIJS) and U Nonimmigrant Status (U Visa).  This experience illustrated that even though these young immigrants were victims of crimes, tragically, their fear of coming forward as “undocumented” stopped them from seeking help.  Congress created both SIJS and the U Visa to protect vulnerable populations, but we all need to do a better job with advocacy to ensure that these victims are aware of the protections and benefits available.

Specifically, Congress enacted a federal law in 1990 creating SIJS to assist vulnerable undocumented children in obtaining lawful permanent residence in the U.S.  Children involved in adoption or guardianship proceedings that have been abandoned, abused, or neglected by at least one of their parents may be able to obtain SIJS and be eligible to later become a lawful permanent resident.  In order to qualify, the child must be under the age of 21 and unmarried at the time of application.

A court must declare the child dependent on a “juvenile court” or the court must have placed the child in the custody of an agency or department of the state, or an individual or entity appointed by the state or juvenile court.  Furthermore, the court must find that the child’s reunification with one or both parents is not possible due to abuse, neglect or abandonment and that returning to the child to his or her home country is not in the child’s best interest.  Provided that the individual must apply before reaching the age of 21 and the complexity of the matters involved in the juvenile court, many children “age-out” before they become aware of SIJS.

In 2000, through the Victims of Trafficking and Violence Protection Act, Congress created the U Visa, intending to strengthen the ability of law enforcement agencies to investigate and prosecute cases in the immigrant community and help law enforcement to better serve victims of crimes. Victims of qualifying criminal activities, including domestic violence and sexual assault, who have suffered substantial physical or mental abuse may apply for a U Visa if they are willing to assist law enforcement or other government officials in the investigation or prosecution of those crimes. After three years in U Visa status, the individual is eligible to become a lawful permanent resident. Among other substantial requirements, a U Visa applicant must obtain a certification from a government official declaring the individual “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the crime.

We are grateful that President Obama created DACA for many reasons, but one of the unexpected reasons is that more undocumented immigrants are seeking the necessary legal advice to ensure they are aware of their immigration rights and benefits. This experience reminds us and we hope other immigration advocates, of the importance of advocacy and education in the immigrant community in order to ensure that the most vulnerable are offered the protections available to them under the laws of the U.S.

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