‘Deferred Action’ and Work Permits: New Immigration Rat Trap?

by on September 5, 2012 · 1 comment

in Government

By Carlos Batara

Ring. Ring. Ring.

Over the past two weeks, my immigration law offices, probably like many others, has received tons of calls regarding Deferred Action for Childhood Arrivals (DACA).

Most callers’ interests are very low. They only want to know if they qualify for deferred action . . . and, of course, employment authorization.

To me, that’s unacceptable.  I refuse to address DACA in such limited terms.

I’ll assess their situation to determine if they technically qualify for DACA on one condition. They meet with me so I can explain present flaws, future dangers, and other possibilities for legalization before they apply for deferred action.

Unlike many college-educated DREAMers who are willing to play a sacrificial role similar to 1950 and 1960 civil rights protestors, most DACA applicants are neither as idealistic or knowledgeable.

When they arrive at my office, I ask, “Did you ever see cartoons, when you were a young kid, showing rats who come out of hiding to grab a piece of cheese – cheese attached to a rat trap?”

Yes, they nod.  I continue.

“Do you recall what happens when they reach for the cheese?”

Again they nod.

“Wham!”

“They’re trapped.”

“Their dreams are shattered.”

“Now, replace the cheese with a work permit.”

They get the point.  Now we can talk in depth about deferred action.

Professional Malpractice?

In a recent blog post, Fox News legal commentator Greta Van Susteren discussed the possibility of negative consequences for undocumented immigrants who apply for DACA relief.

She pointed out, under DACA, immigrants must provide the government with information which can be used to deport them in the future.  Susteren added, as a former criminal defense attorney:

“I can’t figure out why in the world any lawyer would EVER recommend a client sign up for the temporary deferred deportation program. I think it would be legal malpractice.”

Overall, I agree with her.

As I explained in The Immigration Twilight Zone: Deferred Action For Immigration Youth, far too many uncertainties exist about DACA.

Lawyers who file deferred action applications impose the following risks on their clients:

  • DACA provides no path to permanent residency or any other legal status. It’s a legal dead end. If the program ends, and applicants have no other means to legalize their immigration status, will they be placed in deportation proceedings?
  • There is no guarantee how long the program will remain in place. Some partisan critics have noted that if Obama is not re-elected, DACA may be terminated. However, the reality is that termination could happen even if Obama wins again.
  • Will the government seek to deport unsuccessful applicants? Thus far, the administration has been fairly quiet on this issue. Could it be the official answer might lead to an untimely loss of political support for the Obama administration?
  • Even if your application is approved, what’s the risk to your your parents, brothers, sisters who are not eligible to seek deferred action? Are they immune from the long and hostile reach of ICE? Again, the official word lacks clarity.

Perhaps legal malpractice is too strong a word.  Questionable professionalism fits better.

Immigration Attorney Shysters

It’s bad enough immigrant youth have to worry about the real meaning of DACA regulations.

They also have to worry about becoming the victims of scammers.  To date, most fraud discussions have focused on notarios, immigration document services, insurance agents, interpreters, and legal assistants.

Sparse attention has been paid to fraudulent immigration lawyers.  Like other con artists, these folks open up shop, offer special deals, make misleading claims, earn quick thousands, then vanish.  Nowadays, many have added the web to their repertoire of tricks.

Over the past 2 – 3 weeks, the internet has seen a wave of new law office sites suddenly sprout, most of which tout their deferred action credentials.

On the other hand, some attorneys, seemingly legitimate, have recently put together carefully worded but misleading statements on flyers, advertisements, and the internet to draw clients into their cash-hungry claws.

Consider:

“Deferred Action Lawyer – Obtain Permanent Residency Now.” The deferred action program does not allow immigrants to become permanent residents. I’m sure this lawyer would argue that it could, in the future, help some immigrants indirectly become green card holders.

“20 Years Experience – Deferred Action Attorney.” As of this writing, DACA is less than two weeks old. Yet, this attorney would likely assert that he has worked on other types of deferred action cases at some point in his 20 years of practice.

“Experienced And Aggressive DREAM Act Attorney.” Since the DREAM Act has not passed, I’m sure this fellow is just thinking ahead.

My point, as a deportation defense lawyer, is this: These types of claims, at best borderline truthful, cast doubt on the professional ethics of such lawyers.

When immigrants seeking advice on deferred action meet with them, will these lawyers genuinely address the high stakes and potential pitfalls of DACA?

Or will they push immigrants into filing deferred action applications come hell or high water?

Luck And Consequences

I ask immigrant youth who visit me to think about deferred action this way.  If you’re not yet 29 or 30, why make a rush decision?  Do you really want to be a guinea pig for a possible immigration boondoggle?

You have several years to carefully watch the development of DACA. If it passes the test of time, or if the real DREAM Act comes to fruition, you’ll still be young enough to qualify.

On the other hand, if the worse case scenario happens, where will you be in 10 years? Living outside the U.S. with little or no chance of legally returning?

By nature, I’m a risk taker. But during my years of practice as a San Diego immigration attorney, I’ve learned there are some situations, where taking risks is downright foolish. At those times, caution is warranted.

Deferred action, after all, is not just about a work permit today.  It’s about your future.  In the end, if you’re thinking about seeking deferred action, ask yourself this one question.

“Do I feel lucky?”

Carlos Batara is an immigration attorney in San Diego and Riverside Counties.  His website can be found here.

{ 1 comment… read it below or add one }

avatar Linda D. Smith September 6, 2012 at 8:14 pm

I read your article with great interest but I can’t say that I agree with your analysis. First of all, there were webinars put on by the USCIS just weeks before implementing DACA and they did not duck the question of whether the information gathered would be immediately turned over to ICE. In fact, they stated affirmatively that the information would not be available to ICE. That is I imagine unless someone with a serious criminal record were to apply. I agree that if there are gaps of time that can’t be proven or questionable criminal behavior why be the first one to be assessed, however, many of those qualified fit the criteria exactly and why shouldn’t they have some hope that this is just the first of many good things to come. They live with the knowledge that they could be in the next group of deportees every day, what do they really have to lose? It seems to me that gambling on the risk that you might be picked up at any time is when you should ask “do I feel lucky today?”

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