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Matthew Kolken on Deportation And Removal

You've been patient; now be prudent, By Lory Rosenberg

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A is for August 15th and Applications are being accepted for DREAMers who qualify for deferred action according to the standards and conditions that have been announced and explained by USCIS. One critical area involves certain minor traffic violations and minor (non-significant) misdemeanor convictions.


Given USCIS's reservation of the right to consider all offenses in a DREAMER's record as a matter of discretion in adjudicating DACA applications, I would prepare these cases as though the applicant was applying for a statutory form of discretionary relief from removal with respect to providing evidence explaining remorse, rehabilitation, re-education, and some indicia of assurance that the client will not be a repeat offender.


I would go beyond a sworn declaration from the applicant and the documents pertaining to the incident, and provide corroborating evidence from teachers, employers, doctors, counselors, community figures, ministers, rabbis or priests, or other adults or leaders who have interacted with the DREAMer and know her character overall.


I also would include objective data that relates to the nature of the violation or offense. Such evidence might include local/national reports concerning the prevalence or problems caused by the activity underlying the violation or offense, expert studies on age-related or incident-related conduct and recidivism, and even an individual expert forensic psychological evaluation that would constitute a professional assessment of that DREAMer's law abiding nature, lack of dangerousness, and degree of social adjustment.


It would be prudent to provide such supporting evidence whether the purpose is to demonstrate that the offense is not a minor misdemeanor at all, e.g., a traffic offense, or that it is a minor, non-significant misdemeanor.


It seems to me that in light of the discretionary latitude that USCIS has reserved, the burden is on the DREAMer to establish that her application contains no basis for a finding of ineligibility or denial. This is a strategy call, of course, and while it may seem to be excessive to so comprehensively document the incidence of a single violation or minor offense, it is worth considering - at least on a case by case basis - given the absence of any motion to reopen or appeal.

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