Deferred Action Helps Kids in Country Illegally Extend Their Stay

Hank Kalet | November 27, 2012 | More Issues
Sometimes called "Dream Act Lite," deferred action grants two-year work permits not green cards and citizenship

Dina Ochoa was 13 years old when she came to New Jersey with her parents on a tourist visa.

The Ochoas had family in the Trenton area and would make the trip about twice a year, always returning to Guatemala.

But in 1999, Dina’s family was involved in a car accident back home and were being threatened by the other driver. Fearing for their safety, they decided to overstay their tourist visa, joining the ranks of the estimated 12 million undocumented immigrants in the United States.

Dina’s uncle, a naturalized citizen, submitted a petition for the Ochoas to receive their green cards, but they had to wait until the backlog cleared. Until then, they would have to live in the States without status — which they did, for 13 years. Early in 2012, Dina, her sister, and her parents were issued official work permits. They expect to receive their green cards in about three months.

Despite being a stellar student — she was No. 1 in her bilingual education class at Trenton Central High School — Dina found her options limited. She could not accept a $10,000 scholarship and was unable to receive financial aid because she lacked legal status. She ended up paying her own way through Mercer County Community College and is now pursuing her bachelor’s degree, while working two jobs.

Still, she considers herself fortunate. Most undocumented children never find the pathway to legal status. And for most of them, the decision to come here was not their own.

That, say advocates for undocumented immigrants in New Jersey, is where President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) comes in.

Often conflated with the Development, Relief, and Education for Alien Minors (DREAM) Act, the two are actually quite different.

The DREAM Act, which has been under consideration in numerous forms since 2001, would provide conditional residency status to those who immigrated as children, while opening up the possibility for permanent residency — or a green card — if they complete a four-year college degree or serve two years in the military.

With the bill stalled in the U.S. Senate, Obama issued an executive order in June creating DACA. It protects immigrant children who lack legal status from being deported for two years, with the opportunity to apply for extensions when the protective order expires.

More specifically, DACA — sometimes referred to as DREAM Act lite — allows undocumented immigrants between the age of 16 and 30 who entered the United States before their 16th birthday to apply for work authorization and a two-year delay of potential deportation by the federal Department of Homeland Security.

Groups like the Latin American Legal Defense and Education Fund in Mercer County and the NJ Dream Act Coalition are encouraging those who came here before they were 16 to apply to DACA. They have been holding workshops to help kids navigate the application process.

The NJ Dream Act Coalition is also lobbying the state Legislature to pass Assembly Bill 1659, sponsored by Democrats Gordon Johnson (Bergen), Valerie Vainieri Huttle (Bergen), and Annette Quijano (Union).

The bill, which has been referred to the Assembly Higher Education Committee, would allow undocumented immigrants who graduated from a New Jersey high school to qualify for in-state tuition from New Jersey colleges if they have applied to legalize their immigration status.

The Usual Story

Maria Juega, executive director of the Latin American Legal Defense and Education Fund, said Ochoa’s story is not unusual. There are about 500,000 unauthorized immigrants in New Jersey, with probably 15 percent being undocumented immigrants who came to the United States as children. For many, the United States is the only place they have known, Juega said.

DACA is open to about 1.7 million undocumented immigrants, according to federal officials. So far, nearly 180,000 nationally have registered for , according to federal statistics. State-level numbers are not available.

Critics of the Obama program said the order created a backdoor amnesty program because it was unlikely that the government would rescind the deportation moratorium for those who initially qualified. They accused the president of bypassing the legislative process and pandering to the Latino vote on the eve of the 2012 election.

Advocates for the undocumented praised Obama but said the program is a far cry from what is needed because it leaves the Dreamers — named for the DREAM Act — in limbo. They are continuing to press for passage of the DREAM Act and other, more comprehensive reforms.

The deferred action process can be daunting, advocates say, which is why they have been holding workshops throughout the state. LALDEF has hosted programs in Hightstown, Princeton, and Trenton. The DREAM Act Coalition has held programs in Newark, Elizabeth, Plainfield, and Passaic, and will host one in Hackensack on December 8.

The workshops enable prospective applicants to talk with attorneys before applying, said Marisol Conde-Hernandez, a cofounder and board member of the NJ Dream Act Coalition. Applying can be difficult and expensive, and the process raises a red flag for some applicants.

Applicants must fill out several federal forms, provide a translated and certified copy of their birth certificate, and offer the following documentation: proof of identification (a valid passport or other government-issued identification); proof of presence in the United States for each year between 2007 and the date of application; proof that they arrived before the age of 16; and proof of presence in the United States on June 15, 2012 (the date Obama issued the executive order).

They also must pay a $465 application fee. Once a deferred action request is filed, applicants must submit photographs and fingerprints.

That last step troubles Conde-Hernandez, because, “Homeland Security can now find them.”

She continued, “If they have committed a crime in the past or if they create a crime now — such as drunken-driving — they are now in the system and that creates a danger that they would be removed.”

On balance, however, Conde-Hernandez said deferred action offers real benefits.

“It’s a good opportunity for people who qualify,” she said. “Many young people have difficulty obtaining jobs, if they don’t have legal status. With deferred action they can qualify for a work authorization and maybe establish some financial stability.”

DACA is especially positive for those under the age of 18, she said, because it stops the clock on the accrual of “unlawful status.”

Undocumented immigrants who have been in the U.S. for 180 days to a year are barred from seeking legal status for three years. Those who are here for more than a year are barred from seeking legal status for 10 years. They are supposed to leave the country and apply for readmission.

The accrual of illegal status does not begin until one turns 18, Conde-Hernandez said, adding that applicants need to understand DACA.

Welcome to the Workshop

On November 10 in Hightstown, LALDEF hosted a workshop designed to connect the immigrant community in the borough to immigration lawyers who could help them navigate DACA. It was the fourth workshop hosted by LALDEF — one of several taking place statewide being run by other advocacy groups.

Several dozen immigrants and their families attended to discuss their status, review paperwork and qualifications, and begin the application process.

In addition to the age requirements, applicants must have been in the United States for at least five years without a break; be in school or graduated from high school; obtained a general education development certificate; or have been honorably discharged from the Coast Guard or armed forces.

They cannot have been convicted of any significant criminal offenses or multiple minor offices or “otherwise pose a threat to national security or public safety.”

There are no guarantees that the applications will be approved, but Juega said the program was an important first step that would allow the undocumented to apply for legal authorization to work.

“It would bring more workers into the legal economy, meaning tax collections would increase and maybe [the immigrants] will be able to get credit and consider buying homes and cars, furniture and appliances,” she said. “It will be a boost to consumption in general.

“And it will open other things up,” she added. “They will be able to aspire to better jobs. Their primary employment is in the cash economy, but if they can get better educated and get better job skills it becomes a win-win.”

The program does not confer legal status, she said, but it removes the shadow of deportation. There is no path to legal residency or citizenship, but it allows the undocumented to receive an Employment Authorization Document from Homeland Security and to work legally in the United States..

Immigration attorney Christopher R. Barbrack, who provided his services at the workshop pro bono, said there are significant obstacles built into the program, including the cost of applying and the difficulty of obtaining some documents from their home country, a lack of manpower to review applications, and an ingrained distrust of the government.

“There is a general pattern of paranoia about the government,” he said. “[It] says it will not do anything with the information from the applications and they are required to tell the truth, but if you look at the fine print it says the government can use the information against them.”

Many immigrants who may have had minor brushes with the law — possibly driving without a license or having forged documentation — are scared that those infractions may not only preclude their approval but could result in their deportation.

“These people are contributors to the American dream, and I want to help them with the American dream,” Barbrack said.

Elizabeth immigration attorney Oscar J. Barbosa, a partner with Leschak & Barbosa, came to the United States from Colombia when he was 15. His family came in with tourist visas and requested asylum, but their visas ran out and they were “without status” for seven months until their asylum came through. It delayed his going to college, temporarily, but made clear the difficulties the Dreamer generation faces.

“They are second-class citizens who have no chance to get out of it,” he said. “Right now, that opportunity does not exist. What this allows them to do is get work identification, a work permit — without getting deported.”

Preserving the Dream

The Deferred Action program is a step in the right direction, he said, but he believes it is important that Congress pass the DREAM Act.

“The DREAM Act will allow them to be, eventually, residents,” he said. “This doesn’t. This is just a promise not to be deported.”

For now, that is good enough for Jaime Ruiz. The East Windsor resident came to the United States from Colombia when he was 10 to reunite with his parents. They had left Colombia shortly after he was born, and Ruiz lived in a foster home and then with his grandmother until he got on a plane for Miami in 2001.

He started school in the fifth grade and never considered college, because he thought his immigration status would prevent him from applying. His guidance counselor, however, told him to that he could apply and attend, even though he could not receive student aid or loans. He now attends Mercer County Community College.

“In high school, I felt worthless,” he said. “I didn’t understand why, if I am doing everything right, why wouldn’t I be allowed to better myself and better the community. When I first got here, I was a straight-A student but the fact of my immigration status discouraged me. I though I would end up like my parents, working in a warehouse.”

He applied for Deferred Action at the Hightstown workshop because he hopes it will “open doors” and allow him greater opportunities.

Conde-Hernandez agrees. She said that Deferred Action and the possibility for a work permit could allow younger immigrants to move beyond the jobs most have been forced to work in — manufacturing and warehouse work, food service and agriculture.

She also hopes Deferred Action will create momentum for further reform — including the DREAM Act and tuition parity. Conde-Hernandez, who came to New Jersey from Mexico with her parents when she was one, graduated from South Brunswick High School in 2005. She then attended Rutgers University and graduated summa cum laude in 2011. She had to pay out-of-state tuition — or about twice what her fellow SBHS graduates paid at the same school — because of her immigration status.

The Dream Act Coalition is supporting the in-state tuition bill — a similar one failed in 2010 — and would like to see legislation conferring state benefits to those who receive Deferred Action.

Ochoa, a member of the coalition. said that in high school she began to understand that her lack of legal status would be an impediment to her goals, which included college.

“I knew I didn’t have legal status but I didn’t realize how painful it would be,” she said.

“I couldn’t apply for financial aid or loans and it’s hard to find good jobs so you can support yourself,” she said.

Again, she says she is lucky. Far too many in her generation remain in limbo.

To Barbrack that is unconscionable.

“From the economic point of view, the moral point of view, the government is doing things that are impossible to justify,” he said.