Who needs DACA and Obama when you have excellent lawyer?

Legal writers are churning out reams of copy based on DHS press releases about DACA (Deferred Action for Childhood Arrivals) and how children who came to this country illegally can defer deportation. President Obama’s Department of Homeland Security issued this regulation on June 12, 2012 after Congress refused to pass a law giving such benefits under the so-called Dreamers Act. Constitutionalists (of which Obama is supposed to be one having been a professor of Constitutional Law) doubt the constitutionality of this regulation because it constitutes law making which is a power that belongs exclusively to Congress. Some judges will always find a way to legalize this act just as they called a tax the health insurance premium imposed under Obamacare. These legal writers are reminding children granted DACA deferral that they must renew their DACA status before the 2-year period given them expires.

Who needs DACA and Obama when you can get an excellent lawyer who knows how to search for waivers and use them? There are immigration laws granting waivers to children who came illegally to the United States. We have found such laws and used them to save all eight children who came here illegally and later sought our help after they were placed in removal proceedings. We did not invoke DACA. The children are now green card holders and on their way to obtaining citizenship.

Deferred action under DACA is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not provide an individual with lawful status. It does not give such children a green card nor confer citizenship.

Immigration waiver laws

We are writing a book about waivers under the immigration laws.

One such waiver law is Section 237(a)(1)(H) of the Immigration and Nationality Act (INA). It provides that an alien may obtain a waiver for fraud or misrepresentation in obtaining a visa if such alien (1) is the spouse, parent, son, or daughter of a U.S. citizen or an alien lawfully admitted to the U.S. for permanent residence, and (2) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission.

Another waiver provision is INA Section 212(i). It provides that the Attorney General may waive the fraud or misrepresentation in obtaining a visa (1) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or LPR, AND (2) if the refusal of admission would result in extreme hardship to the citizen or LPR.

Still another waiver provision is INA Section 212(k). It provides that an alien who is inadmissible because (1) the alien lacks a labor certification or (2) was not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document, and a valid unexpired passport or other suitable travel document or whose visa had been issued without complying with the laws, may be admitted in the discretion of the Attorney General if the inadmissibility was not known to, and could not have ascertained by the exercise of reasonable diligence by the immigrant before the time of departure of the vessel or aircraft from the last port outside the U.S. and outside foreign contiguous territory, or in the case of an immigrant coming from a contiguous territory, before the time of the immigrant’s application for admission.

So why don’t these children who came to the United States illegally avail of these waiver provisions? “Is a puzzlement, what to tell a growing son,” as Yul Brynner sang in the King and I.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com, http://www.Hawaiimigrationattorney.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)