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Phantom of a DREAM

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Since last Friday (June 15, 2012) many articles have been written about President Obama's announced Executive decision that effective immediately, he was extending "...temporary relief from deportation [removal] proceedings and [eligibility ] to apply for work authorization" to those whose unlawful status is due to no fault of their own. The beneficiaries are those who would benefit under the DREAM Act which has failed to be enacted by Congress. See my prior articles on the subject here and here.

On the same day Secretary of Homeland Security (DHS), Janet Napolitano, announced that implementation of the program will likely be delayed 60 days.

The presidential announcement was hailed as overdue action, but was also attacked as an unconstitutional usurpation of power because only Congress may make laws that impact aliens, and further, because giving employment authorization to an estimated 800,000 candidates will have an adverse impact on unemployed American youths. Despite the objections, morally it was the right thing to do.

It was reported that demonstrating in front of the Federal Building in Los Angeles were those who may benefit from the announced process, declaring: " We're going to come out of the shadows!"

Not so fast! It will not be that easy. There are two groups involved here: (1) Those already before the Immigration Judge (IJ) in removal proceedings or who have already been ordered removed, and (2) those whose identity and status are not yet known to the government. Members of the first group would clearly benefit by having their court proceeding terminated or a departure order suspended for two years, receiving with it an Employment Authorization Document (EAD). The benefits to the second group are less certain and can come with a heavy price.

The offered benefit must be taken with a grain of salt. Examine the language of a memo, a mirror image memo of the Executive Order, immediately released by the Immigration and Customs Enforcement (ICE). See here. The end of the memo contains the following "Disclaimer":

There is no right to the favorable exercise of discretion..., nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or ...to enforce federal immigration law. Similarly, this memorandum, ...may be modified, superseded, or rescinded at any time without notice..., may not be relied upon to create any right or benefit... [Emphasis added].

The above disclaimer should make very clear to the second group that there are no promises. In fact, those who "come out of the shadows" will need to register with the U.S. Citizenship and Immigration Services (USCIS) in order to ask for deferred action--i.e. deferral of institution of any removal proceedings against them. In asking for this discretionary action and EAD, they would no doubt be required to provide detailed biographical information, disclosing address and most likely the identity of their parents and other family members who are in the U.S. unlawfully, and who may not fall within the narrow scope of this "prosecutorial discretion."

Indeed, President Obama made clear that his new policy "is a temporary stopgap measure" for only two years, and it is: Not immunity, not a path to citizenship, and not a permanent fix

Janet Napolitano added her own warnings:

1. DHS cannot provide any assurance that all such requests will be granted.

2. Prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Emphasis added.

Yes, and neither does it create a pathway to resident status. It is nothing more than a limbo status, albeit a legal limbo. And because it is a matter of discretion and not law, it can be changed or revoked at any time. In the case of the first group, a change could mean re-instituting removal proceedings. As to the second group, removal proceeding may be instituted at the end of the two years, or at the time that deferred action is denied. On the other hand EAD may be extended for another period. It is also important to understand that current law provides no stand-alone benefit to defend members of either group from removal. And what about the family members of the second group whose identities and addresses have been revealed? Will removal proceedings be instituted against them? How safe is it to come forward and register?

Curiously, on November 17, 2011 very specific guidelines were issued by Immigration and Customs Enforcement ( ICE) in connection with the earlier June 17, 2011 memo of John Morton. See here. That June memo already specifically mentioned availability of discretion based on "...[the] circumstances of the person's arrival in the United States... particularly if the alien came to the United States as a young child...[and] the person's pursuit of education in the United States... particular[ly] ... those who have graduated from a U.S. high school... are pursuing a college or advanced degrees... in the United States..." See here.

So, why was such fanfare made of this two year provision? Was it the EAD? Was this election year politics? Is this a peace offering by President Obama for not tackling promised immigration reform during his first two years in office when Democrats controlled Congress? Will this announcement be enough to capture the Latino vote? Perhaps the move will motivate Congress to act in favor of a group that came forward to register? Most worrisome is that this offer has strong potential for abuse, becoming a trap for those who relied on a promise of short duration. Let's hope not.

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