Category Archives: DACA

One Seeking Asylum Or Withholding Of Removal Based On Membership In A Particular Social Group (PSF) Must Clearly Delineate The Proposed Group On The Record Before The Immigration Judge (IJ). The BIA Will Generally Not Address A Newly Articulated PSG On Appeal If It Was Not Advanced Before The IJ.

On January 19, 2018, the Board of Immigration Appeals (BIA or Board), in dismissing the appeal of a Honduran citizen, issued a decision which arguably adds to the burden of proof a respondent in removal proceedings who files for political asylum and/or withholding of removal has historically faced.  The instant applicant had entered the U.S. without inspection and before the Immigration Judge (IJ) sought asylum and withholding based on membership in a particular social group (PSG), in this case, single Honduran women aged 14 – 30 who are victims of sexual abuse within the family and cannot turn to the government.

The IJ found this PSG was not cognizable under the law and denied the claim.  On appeal, respondent conceded that her original PSG was not a valid social group but asserted eligibility under a new formulation, articulated for the first time on appeal as “Honduran women and girls who cannot sever family ties.”

In the beginning of its analysis the BIA, in noting that its function is to “review, not to create, a record”, cited to the well-established axiom that it will generally not consider an argument that could have been, but was not, advanced before the IJ.  The decision reiterated that it is an applicant’s burden to establish a claim for relief on the record before the IJ and affirmed that one must therefore “clearly indicate” (on the record before the IJ) what enumerated grounds he or she is relying on; where a respondent raises membership in a PSG as the enumerated ground, stated the Board, he or she has the burden to clearly indicate the exact delineation of any claimed group.

Further, concluded the opinion, the “importance of articulating the contours of any proposed social group” before the IJ is emphasized by the “inherently factual nature” of the court’s social group analysis.  Thus, where as here, an applicant delineates a PSG for the first time on appeal, the IJ will never have had an opportunity to make the necessary factual findings, which the BIA will not do in the first instance.  Further, the new PSG articulated in this appeal is substantially different from that delineated before the IJ, who “did not have the opportunity to make the underlying findings of fact that are necessary to” the Board’s analysis; again, such findings cannot be made for the first time on appeal.

The BIA thus declined to remand proceedings to the IJ for factual findings on the new PSG, affirmed the denial of the applications below and dismissed the appeal.  Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).


On September 5, 2017, President Trump announced that the Deferred Action for Childhood Arrivals (DACA) program will be ending. It is believed that this move impacts almost 800,000 young people who entered the U.S. before age 16 who had temporary protection from deportation and work authorization. Some important information to know right now:

  1. First and foremost, please talk to an attorney at this point. Many people who have had DACA may now qualify for other forms of immigration relief. For example, his or her circumstances may have changed and the person may be eligible to apply for a provisional waiver.
  2. If You Do Not Have DACA or a DACA Application Pending. You cannot apply. The program has been terminated and new applications are no longer being accepted by USCIS.
  3. If You Have DACA That Expires on or Before March 5, 2018. If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017.
  4. If You Have DACA That Expires After March 5, 2018. If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension and your DACA, work authorization, and protection from deportation will expire on the date shown on your DACA approval notice and work permit.
  5. If You Have a DACA Application Pending. If you have a DACA application that was received at USCIS on or before September 5, 2017, your application will continue to be processed.
  6. If You Have DACA and a Valid Advance Parole Travel Document. If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the document expires. However, even with a valid travel document, CBP can still refuse to let you in. Before you travel, speak to a qualified immigration lawyer.

Of course, soon after the announcement terminating DACA litigation ensued. There are various cases filed now pending. Different government agencies have also stepped up to provide assistance. For example, the City and County of San Francisco has offered to pay the government filing fees if you are still eligible to renew DACA.

What was DACA?

DACA was the Deferred Action for Childhood Arrival, which is a sort of modified “DREAM Act,” a program put in place by the Obama Administration, so that children who came to the U.S. illegally or fell under DACA status through no fault of their own because they were so young are not in danger of being removed. They can continue to live here in the U.S., are eligible for work authorization. While they have a status as a DACA registrant, although not amenable to deportation, they are still not considered to be here in a viable legal status.

It was a way for the government to locate, register, monitor, but also to allow that group to remain in the U.S. without a major fear that they are subject to removal the very next day. The government explicitly states that all of these people are subject, should the Department of Homeland Security decide otherwise, to being removed for being here unlawfully. Those who are eligible for DACA must meet all of the following criteria:

  1. They must have entered the U.S. without inspection before June 15, 2012, or have had their lawful immigration status expire as of June 15, 2012.
  2. They must be at least 15 years old at the time of filing if required. However, there is an exemption for younger children who are subject to an order of removal that have been granted voluntary departure: They may also gain an exemption and file.
  3. They must have arrived in the United States before turning 15 years old.
  4. They must have been born after June 15, 1981, or not aged 31 or older on June 15, 2012.
  5. They must have continuously resided in the U.S. since June 15, 2007, up to the present time (meaning up to the date of filing).
  6. They were present in the U.S. on June 15, 2012.
  7. Are currently in school, have graduated or received a certificate of completion from a high school, obtained a General Education Development certificate, or were honorably discharged from either the U.S. Coast Guard or the U.S. Armed Services.

One aspect about continual residence: It is noted by the Department of Homeland Security that a brief, casual, and innocent absence from the U.S. will not interrupt continuous residence. If the applicant was absent from the U.S. for any period of time, there absence will be considered brief, casual, and innocent if it was before August 16, 2012. The qualifications for DACA include:

  • The absence was short and reasonably calculated to accomplish the purpose for the trip out of the U.S.
  • The absence was not because of an order of exclusion, deportation, or removal.
  • The absence was not because of an order of voluntary departure or an administrative grant of voluntary departure before one was placed in exclusion, deportation, or removal proceeding.
  • The purpose of the absence and/or the applicant’s actions while outside of the U.S. were not contrary to the law.

Learn more about the immigration services provided by Philip Levin & Associates.