That is the question I ask every applicant for Deferred Action that I meet with.  Before applying for Deferred Action for DREAMers, President Obama’s new immigration initiative, you must be able to say NO.

If you “otherwise pose a threat to national security or public safety” you will be denied Deferred Action. Gang membership, participating in criminal acts or in activities that threaten the United States are considered threats to public safety or national security. The question is: How do you know whether you are a member of a gang or just walking beside a member? What about if you have been arrested but not prosecuted, if your case was dismissed or acquitted. Are they really a threat in any way?

Since police reports often contain inaccurate facts, incomplete information, and even depend on hearsay statements, they should not be used as the only evidence you participated in criminal activity. If you have a long record of arrests or several reliable and confirmed reports of criminal activity, it makes sense to consider you a threat to public safety or national security and possibly prevent any discretion such as the granting of Deferred Action.

I would suggest that Department of Homeland Security (DHS) consider mitigating factors, including: circumstances of arrests, length of time since occurrence, subsequent conduct, rather than solely relying on background checks and criminal court records. DHS should allow you the opportunity to contest any claim of gang membership. You may have made mistakes years ago and were friends with the wrong people.  What if you recognized your mistake and years later developed into a valuable member of society, helping others, and respecting the law, staying away from any misconduct or criminal act? You should be rewarded for your subsequent actions. 

At the moment, DHS considers criminal history including arrests that didn’t result in convictions and records in databases from local and state offices. Regarding gang involvement, it is believed that tattoos, nicknames, or being listed in a gang database alone does not prove that the person is a threat to public safety or national security. I argue that a threat to public safety must be based on present threat not on a ten year old incident while you were in a juvenile. 

Juvenile actions, is another example of an area of concern.  Juvenile proceedings are civil proceeds to rehabilitate you, not to punish. If you were treated as a juvenile rather than an adult, DHS should agree abide by the states and local government decisions in these cases. Juvenile delinquency is not an indication that you pose a threat to public safety. What happened after you became and adult should be determinative.  If the juvenile act is your only blemish, you should be a candidate for Deferred Action. 

If you were charged with a crime or a juvenile action, you must consult with an experienced attorney. Ideally an AILA immigration attorney knowledgeable in immigration and criminal laws is the best choice. Feel free to call our office for additional information on qualifying for Deferred Action and starting a whole new life!


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