Discussion Points for Punto Legal- June 29, 2016
1. DAPA and DACA. I want to remind everyone where we stand on Deferred Action for Parents of Americans or DAPA and Deferred Action for Childhood Arrivals or DACA.
First, the original DACA program, which was announced on June 16, 2012, remains in place. It was not attacked. It remains in place.
Second, recall that one of Obama’s initiatives was to expand DACA. The expansion of DACA remains blocked.
Third, DAPA will now be sent back to the lower court in Texas for a full trial on its legality. It is not clear how vigorously the Department of Justice will pursue the case. In any event, a trial will take months. It will certainly not be over by the time a new president takes office. A new president could decide to pursue the case, drop the Obama plan entirely, or change it.
Fourth, the future of DAPA and immigration reform depends on the election. The best conditions for immigration reform are (1) Hillary Clinton gets elected to be president and (2) the Republicans lose seats in the Senate and House of Representative. In our own congressional district, we would want to get rid of Republican representative Scott Tipton and elect Democrat Gail Schwartz of Snowmass Village.
If you are a resident and want to become a citizen in time to vote in November, you need to get your citizenship application in by the end of July at the very latest.
Let’s review the eligibility requirements for DACA:
1. You have to be young enough, that is, born on or after June 16, 1981.
2. You have to have entered the U.S. before you were 16.
3. You have to have continuous presence from June 15, 2007 through today.
4. You have to have a high school diploma; GED certificate; or be in school; or enroll in a GED course.
5. You cannot be disqualified as a result of certain criminal convictions, such as DUI.
2. Abandonment of Permanent Residence. If you are a resident and have been gone from more than one year, you can expect to be questioned about whether you have abandoned your residency when you return to the U.S. How long you have been outside the U.S. is a major factor, but it is not the only one. Immigration authorities will consider your intent; employment abroad; U.S. business affiliations; ownership of a home in the United States; payment of U.S. taxes; community ties developed before the departure; maintenance of a bank account, and U.S. residence of other immediate family members. Evidence that the LPR has abandoned residency can include long or frequent absences from the United States; disposing of property or terminating a job in the United States before leaving; family, property, or business ties all located abroad; working for a foreign employer, voting in a foreign election, and failure to file U.S. income tax returns.
Employment outside the United States by a U.S. employer would not likely be considered evidence of abandonment of LPR status.
If you think you may be outside the U.S. for more than one year, get a re-entry permit before you travel. This reentry permit may be obtained by filing Form I-131 with the USCIS before leaving. You can stay outside the U.S. for up to two years and not be regarded as having abandoned your residency with a re-entry permit.
Permanent resident aliens are entitled to a hearing as to whether they have abandoned their LPR status when returning from a lengthy absence. If it is requested, they will be paroled into the country for that purpose. The government has the burden of proving by clear, unequivocal, and convincing evidence that the LPR’s status has changed. In those cases, an immigration judge will hear testimony and weigh the evidence as to whether abandonment has occurred. An LPR retains that status until a formal determination has been made.
If you have been outside the U.S. for over one year, you can simply argue your case to Customs and Border Protection if they raise a question of abandonment. You can also file Form DS-117, Application to Determine Returning Resident Status, along with a fee of $275, with the U.S. consulate.
The consulate will conduct an interview and make a determination as to whether the LPR has abandoned resident status.