By Carrie Rosenbaum
On June 15 President Obama announced that the Department of Homeland Security (DHS) would not deport certain undocumented youth who would otherwise be eligible for the DREAM Act. The administration instituted a policy change, but not an Executive Order. However, because Congress failed to pass the DREAM Act, the President used his authority to direct DHS to exercise its prosecutorial discretion to not deport people that are not an enforcement priority for the administration. On Monday, June 18, 2012, David Aguilar, Acting Commissioner, CBP, Alejandro Mayorkas, Director, USCIS, and John Morton, Director, ICE, spoke to stakeholders on a conference call. What initiated the action is unclear. Some speculate that the move is related to the upcoming elections, while others suggest the move was influenced by a letter signed by 100 law professors urging President Obama to use his authority to provide temporary relief from deportation.
Deferred action (DA) is a form of prosecutorial discretion and acts as administrative relief from deportation. Historically, U.S. presidents have used DA to prevent removal of immigrants for humanitarian reasons. While it is not new, this is the first time it has been used to benefit this class of people, although consideration for deferred action will be on a case-by-case basis.
The administrative directive has been called "Deferred Action for DREAMers" because it targets the same individuals who would have benefited from the DREAM Act, although it falls short of the DREAM Act in many respects, primarily in that it does not create a path to residency or citizenship. Proponents of the DREAM Act and immigrant rights advocates have criticized the measure's shortcomings including, but not limited to, its failure to eliminate the consequences of unlawful presence that would have accrued before a grant of deferred action.
What Is It?
DA is a form of prosecutorial discretion exercised by DHS to defer or postpone removal proceedings, or actual removal of an individual from the United States. DA will be in effect for two years from June 15, 2012. The administration will then either renew or terminate the program. The beneficiary of DA will not be deported while he or she has DA, but can lose status if he or she does not renew it after two years, or if the program is terminated. Individuals who are eligible for DA may also apply for work authorization, although there are no guidelines yet regarding whether applications for work authorization will be filed concurrently with the application for DA or separately.
Someone with DA cannot petition for family members to obtain legal status, and cannot travel outside of the United States. During the stakeholder call, agency representatives indicated that an application for DA should not cause USCIS to investigate the status of relatives of the applicant who are in the United States. However, advocates and applicants should be wary of this representation.
In order to be eligible for DA an applicant must:
- 1) Have come to the United States under the age of sixteen;
- 2) Have continuously resided in the United States for at least five years preceding June 15, 2012, and be in the United States on June 15, 2012;
- 3) Currently be in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- 4) Have not been convicted of a felony, a significant misdemeanor, or multiple misdemeanors, or otherwise pose a threat to national security or public safety;
- 5) Be age thirty or younger.
On the June 18 stakeholder call, it was also suggested that an individual working toward a GED would also be eligible. "Significant misdemeanor" is a new term of art and is very broad. See the USCIS FAQ weblink (below) for the definition of this term. Whether juvenile adjudications will render an applicant ineligible is still undetermined. Additionally, during the stakeholder call, USCIS Director Mayorkas stated that a person under the age of thirty-one on June 15, 2012 should be able to apply for DA.
To prove that an individual came before turning sixteen, and to prove that he or she has continuously resided here for the five years as of June 15, 2012, he or she may provide financial records, medical records, school records, employment records, and military records.
When and How to Get DA
All individuals must also complete a background check. Anyone making an affirmative request must be between fifteen and thirty years old. There is no process yet for affirmative applicants. Procedures to apply will be announced on or after August 15, 2012. Defensive applicants, or those in removal proceedings or with a final order, may submit a request for review of their cases along with supporting evidence of eligibility. The request should be made to USCIS and not to ICE or Chief Counsel. Requests should not be submitted yet, and instructions on how to make the request to USCIS will be announced soon. Some practitioners have reported that ICE has begun a case-by-case review, contacting practitioners, informing them that their clients are eligible, and offering DA.
Individuals who believe that they can demonstrate that they satisfy the eligibility criteria and are about to be removed should immediately contact either the Law Enforcement Support Center's hotline at 1-855-448-6903 (staffed twenty-four hours a day, seven days a week) or the ICE Office of the Public Advocate through the Office's hotline at 1-888-351-4024 (staffed 9am - 5pm, Monday - Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.
What if An Applicant is Denied DA?
USCIS will refer the cases of those who apply and are denied DA to ICE for initiation of removal proceedings only for those who have criminal convictions or who committed fraud in requesting DA. Attorneys are cautioned to be extremely careful when considering applying for DA for someone with a criminal conviction and to advise the client of the potential consequences.
Fees and Decisions
The administration has not indicated yet how long it will take USICS to issue decisions on DA applications or how much will it cost to apply.
While this move is a step in the right direction, it highlights the fact that Congress is long overdue in passing comprehensive immigration reform.
Deferred Action / DREAM Update Page
Deferred Action Process for Young People Who Are Low Enforcement Priorities
Charles Gordon et al., Immigration Law and Procedure §33.01 (various humanitarian tools used in the past).
Shoba Sivaprasad Wadhia Reflections on Prosecutorial Discretion One Year After the Morton Memo, 2012 Emerging Issues 6417 (June 14, 2012).
Carrie Rosenbaum, Esq. is an immigration attorney and an adjunct law professor in San Francisco. She can be reached at RIA@immigrationappellatelaw.com. (www.immigrationappellatelaw.com).
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