Hurrah! Time to celebrate! (I think.)
Finally, something that looks and feels real in the world of immigration reform. Yet there still is a part of me that remains cautious, in light of previous broken promises by President Obama.
So, what has happened?
In an effort to appease an important segment of the electorate that has felt ignored and overlooked, the Obama Administration announced on June 15, 2012, that it will stop deporting, and begin granting work permits to, younger undocumented immigrants who came to the U.S. as children, also known as "dreamers," effectively bypassing an inattentive Congress, through a program called "Deferred Action."
The Department of Homeland Security is taking this extraordinary step to enact administrative reforms in light of longstanding Congressional inaction to pass immigration measures, such as the DREAM Act, which was designed to establish a path toward citizenship for young people who came to the United States illegally but who have attended college or served in the military.
This new policy is intended to not only stop the deportation of some in removal proceedings or with final removal orders, but also grant temporary deferred action status to those not in removal proceedings.
An estimated 1 million people are eligible for this program.
What is Deferred Action?
The program is called "Deferred Action" which is a discretionary determination to defer removal action of an individual. It does not confer lawful status upon the individual, but it does allow the person to apply for work authorization if they can demonstrate "an economic necessity for employment." Grants of deferred action will be issued in increments of two years. At the expiration of the two-year period, the grant of deferred action can be renewed, pending a review of the individual case. Deferred action status can be revoked at any time by the government.
Who Is Eligible?
Eligible individuals are those who demonstrate that they meet the following criteria for the exercise of discretion, specifically deferred action, on a case-by-case basis:
• Came to the United States under the age of 16;
• Have continuously resided in the United States for at least five years preceding June 15,
2012, and are present in the United States on June 15, 2012;
• Are currently in school, have graduated from high school, have obtained a general
education development certificate, or are honorably discharged veterans of the Coast
Guard or Armed Forces of the United States;
• Have not been convicted of a felony offense, a significant misdemeanor offense, multiple
misdemeanor offenses, or otherwise pose a threat to national security or public safety;and
• Are not above the age of 30.
Those who prove through verifiable documentation that they meet these criteria may be granted deferred action/prosecutorial discretion, which will give them immunity from deportation and the ability to apply for work authorization with no renewal limits. This announcement is in line with the Department of Homeland Security's mission to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk.
How Do I Apply?
As of this writing, there is no official application form for requested deferred action. In the past, deferred action was requested by sending a letter to U.S. Immigration & Customs Enforcement ("ICE") explaining why the individual should not be deported as an exercise of prosecutorial discretion. In the announcement of June 15, 2012, the government simply stated that within 60 days, both ICE and U.S. Citizenship & Immigration Service ("USCIS) will begin implementing this process. Whether the process will be identical to that used in the past, or whether it will be a new process is not clear. We will have to wait and see for further clarification.
In the meantime, both ICE and U.S. Customs and Border Protection (CBP) have been instructed to immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the U.S. Similarly, USCIS has been instructed to exercise its discretion in refraining from issuing notices to appear and initiating removal proceedings for low priority individuals described in this memo.
You should quickly contact an experienced immigration lawyer to see whether you or your children are eligible for this new program. An immigration attorney will be able to advise you on what documents you should be collecting and preparing now, so that you are ready to submit your request for deferred action shortly after the government announces the process. If you wait to begin preparing your case, you may find that hundreds of thousands of cases were submitted before you, and you might have to wait a long time to receive an answer from the government.
Prepare now to legalize your status!
America Will Be Stronger
If all goes according to the stated plan, America will become a stronger nation.
In her announcement on June 15, 2012, Homeland Secretary Janet Napolitano said that "Certain young people were brought to this country as children and know only this country as home ... these individuals lacked the intent to violate the law." She continued on to praise the contributions these young people have already made to our country. This policy change will allow the best and brightest young people, to earn their legal immigration status after a rigorous and lengthy process. It also does much to strengthen our economy, security, and our nation:
• This deferred action plan will contribute to our military's recruitment efforts and
readiness. Secretary of Defense Gates has previously emphasized the rich precedent of
non-citizens serving in the U.S. military.
• It will allow our immigration and border security experts to focus on those who pose a
serious threat to our nation's security. Secretary Napolitano believes that this is a fair way
to deal with innocent children brought to the U.S. at a young age so that the Department
of Homeland Security can dedicate their enforcement resources to detaining and
deporting criminals and those who pose a threat to our country.
• It will make our country more competitive in the global economy. Granting deferred
action will allow these young people to live up to their fullest potential and contribute to
the economic growth of our country. In particular it will play an important part in the
nation's efforts to have the highest proportion of college graduates in the world by 2020,
something vital for America to remain competitive in today's global economy. Companies
increasingly decide to locate in states that have an educated workforce.
• Deferred action will have important economic benefits. According to a recent UCLA study,
students that would be impacted by deferred action could add between $1.4 to $3.6
trillion in taxable income to our economy over the course of their careers, depending on
how many ultimately gain legal status. This income is substantially higher than the
income they would earn if they were unable to attend and complete a college education.
In fact, research indicates that the average college graduate earned nearly 60 percent
more than a high school graduate.
We have much to gain from doing right by these young people.
After years of activism, as well as disappointment endured by the immigrant community, this action helps renew the "hope" immigrants had in the Obama administration and should provide the basis for more change to come.
We have yet to see how the program will be administered, and whether the vast majority of requests for deferred action will be granted, or only a small number.
As we painfully witnessed under the Morton Memo released last summer by ICE, which announced a new prosecutorial discretion policy for low priority cases, sometimes the euphoria of the moment can be quelled when the real story comes out.
We recently learned that only 2% of deportation cases have been granted relief under the Morton Memo and that many undocumented immigrants, without criminal convictions, continued to be arrested and deported, often after being discovered during a routine traffic stop.
Notwithstanding this administration's track record, I am cautiously optimistic that we are on the road to real progress in normalizing the lives of thousands of hard-working immigrants. If for no other reason, I am optimistic because the vast majority of applicants for deferred action will not already be in removal proceedings and will therefore apply for deferred action relief with USCIS. This bodes well in terms of placing the majority of adjudications before an agency that grants immigration benefits, as opposed to an agency like ICE which enforces violations of law,
Let's celebrate this important first step.
Richard Herman is a Cleveland immigration attorney with offices in Columbus, Cincinnati, Detroit, Pittsburgh and Raleigh. He is is the co-author of Immigrant, Inc. -- Why Immigrant Entrepreneurs Are Driving the New Economy (and How They Will Save the American Worker)" (Wiley, 2009). Follow Richard on Google+, Facebook, Linkedin and Twitter.