The following was written by the greatest mind we have in the field of immigration law. For those who are not aware, Lory Rosenberg is a former member of the Board of Immigration Appeals, and is responsible for writing the most thoughtful, and insightful decisions on immigration law that I have ever had the good fortune to read.
While on the BIA she wrote opinions responding to literally thousands of appeals from removal and asylum decisions of US Immigration Judges. Her analysis has shaped the very core of my legal philosophy. My law partner and I consider her a national treasure in the field of immigration law, and it is both a privilege and an honor to be able to publish her words on this blog.
Thank you Ms. Rosenberg, for everything that you do.
A Rude Awakening
Dreamers should not be discouraged from consulting with responsible, knowledgeable, and ethical immigration lawyers who have comprehensive experience with the immigration laws. However well-intended Mssrs. Durbin's and Gutierrez's video message of August 6, 2012 may be, it is a gross distortion to suggest that immigration lawyers who offer legal services to Dreamers who are applying for deferred action are taking advantage of them. It is patently inaccurate to say, as Mr. Durbin states in the video, that all but a very few Dreamers will need to use lawyers, and it is misleading to suggest that lawyers and notarios are one and the same with respect to presently perpetrating "scams" or even charging fees for deferred action representation and related legal work.
Dreamers do need lawyers. What they do not need is mixed messages, overgeneralizations, or misguided efforts to insulate them from fraud that inadvertently leaves them at a disadvantage in reaching their dreams.
"Don't Hire a Lawyer" – What?
Immigration lawyers with comprehensive immigration law knowledge and practical experience are informed, honest, forthright and ethical in consulting with and representing potential Dreamer deferred action candidates. We are bound to zealously represent the best interests of our clients and our clients receive enormous value from us. Some of us work in private practice and some work in non-profit organizations, and most all of us provide pro bono services, sometimes at the request of Mssrs. Durbin and Gutierrez for their constituents. Our comprehensive understanding of the complex provisions of the entire immigration statute permits us to identify and grapple with real and potential problems - often before they can cause permanent damage - and allows us to develop creative and effective legal solutions for our clients. Furthermore, the quality representation we provide discourages and counteracts fraud and delivers the real benefits to which Dreamers may be entitled.
With all due respect for their commitment and years of concrete efforts to pass the Dream Act legislation and other needed immigration reform, Mssrs. Durbin and Gutierrez are doing a serious disservice to those Dreamers whom they hope to help, not to mention perpetuating an undeserved and insulting confusion between licensed immigration lawyers who are dedicated to their clients, and notarios who are practicing law without a license or may be engaged in defrauding Dreamers. It is precisely because of the risk of harm from nefarious scammers and the importance of each Dreamer's future with respect to all immigration benefits for which s/he may qualify that individual consultation and representation by responsible, knowledgeable and ethical immigration lawyers is so critical and should be promoted.
No Second Chances
The reality is that no one can know the number or proportion of cases in which legal counsel will not only be needed, but essential to securing deferred action status under the program. Individual obstacles that may exist and issues that may arise in adjudication of a deferred action application must be identified, addressed, and resolved, and this can best be done with the help of an experienced immigration attorney, before the Dreamer comes forward, presents himself or herself to USCIS, and submits an application for deferred action. In reality, the process may be simple and straightforward only for those who prepared by first consulting with counsel.
The reality is that USCIS has made clear that those who do not qualify fall under an exception to the guarantee of confidentiality that accompanies the deferred action program and they will be referred to ICE for removal hearing write-ups. Accordingly, the advent of this temporary deferred action program necessitates, at the very least, an initial professional legal consultation and evaluation to determine whether a potential Dreamer qualifies for the benefits sought in the application and to highlight any defects that need to be addressed and corrected before s/he applies.
The reality is that later will be too late. A Dreamer candidate must establish that s/he possesses the necessary qualifications and has one opportunity to do so. A plethora of questions still exist as to what type and amount of evidence will be sufficient to satisfy each of the qualifiers, ranging from proof of presence in the United States and school enrollment records, to the absence of "significant misdemeanors" and the characterization of "minor" misdemeanors and driving offenses. Nonetheless, the strict rules announced by USCIS do not permit either motions to reopen or appeals.
Nothing prevents a Dreamer candidate from handling his or her own individual application for deferred action. Self-assessment, however, has its pitfalls. Wouldn't it be preferable for that Dreamer candidate to engage experienced counsel for the benefit of his or her insights and expertise? Doesn't it seem important to review collateral issues such as taxes, use of social security numbers, and related factors that may need to be resolved? Moreover, wouldn't it be valuable for a Dreamer to know whether s/he might be eligible for other, additional immigration benefits? Wouldn't it be "worth it," given the impact on a Dreamer's future.
Most knowledgeable, responsible and ethical immigration attorneys would balk at the notion of providing anything less than a comprehensive consultation to examine all aspects of a Dreamer candidate's background, and current status, as well as possible eligibility for any and all benefits under the INA. Although the deferred action program provides a temporary status, a potential Dreamer also may be able to demonstrate eligibility for a status of a more permanent or enduring nature. These circumstances warrant a full and complete legal consultation. In fact, early accounts indicate that Dreamer consultations with expert immigration counsel have resulted in the identification of the candidates' eligibility for U, T, and other visas, and even include a case in which U.S. citizenship was determined to exist!
As Mssrs. Durbin and Gutierrez emphasize in their video, there are "narrow" requirements that accompany the deferred action program and not every student will qualify. It would be naive to assume the deferred action adjudication process will be wholly benevolent and forgiving, or to ignore DHS's track record in other discretionary programs, particularly given the outspoken opposition from representatives of some employees within the agency. This reality underscores the need for involvement at the outset of expert immigration counsel with proven experience evaluating eligibility, establishing qualifications, and documenting applications to satisfy evidentiary standards that will be subject to close scrutiny.
In my view, every individual Dreamer intending to make contact with USCIS and apply for deferred action should consult with an expert immigration lawyer for an overall status and eligibility assessment, as well as an evaluation of where s/he stands at present in relation to his/her goals. The potential issues are serious and consequences can be long lasting. The value that experienced immigration counsel brings to a lawyer-client relationship with a Dreamer candidate more than supports payment of appropriate legal fees for services that may be rendered, and indeed, can prove to be priceless. Now, did someone mention lawyers and notarios in the same breath?