President Obama and the U.S. Department of Homeland Security (DHS) announced a major policy change on June 15, 2012, that will grant deferred action (temporary relief from deportation) and begin issuing work permits to certain young adults who came to the U.S. as children, often referred to as “DREAMers.”
The DREAM Act, first introduced in the Senate in 2001, would grant conditional permanent residency to certain undocumented individuals who entered the U.S. as children. It has been considered by Congress several times over the past decade but has never passed.
The June 15 memorandum issued by DHS Secretary Janet Napolitano states that, effective immediately, the government will exercise “prosecutorial discretion” and will not seek to deport undocumented individuals who meet the following criteria reminiscent of the DREAM Act:
- Came to the U.S. under the age of 16;
- Continuously resided in the U.S. for at least five years preceding June 15, 2012 and present in the U.S. on June 15, 2012;
- Currently in school, graduated from high school, obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or Armed Forces;
- Never convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and n Not above the age of thirty.
Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. Appropriate background checks will be conducted as part of this process.
It is important to note that deferred action does not provide permanent legal status. It is not amnesty. Nor does it provide a path to citizenship. It is merely a temporary relief from deportation or from being placed into deportation proceedings.
According to DHS estimates, this announcement could affect more than 800,000 young adults potentially facing deportation. For many of these individuals, the U.S. is the only home they know, and English is their first language. The announcement has garnered much praise from many immigration advocates around the country as a way to give Congress time to reach a consensus on the DREAM Act by removing the immediate threat of deportation for these young people. Supporters note that deferred action will encourage economic growth by providing these individuals with employment and education opportunities.
If it sounds too good to be true, it just might be. As with any policy change or memorandum from DHS, there could be potential pitfalls and unaddressed issues.
This action was a policy decision; it is not law. Therefore, if President Obama is not reelected, subsequent administrations can reverse this action. Even if the initial grant of deferred action would be in place for two years, there is no guarantee of renewal. If a new administration withdraws deferred action, those who have applied and provided DHS with their biographical information could find themselves on the deportation radar screen.
Deferred action applicants may be required to reveal that they have deportable relatives in the U.S., who may then be subsequently investigated and deported.
If an applicant has committed a “significant misdemeanor,” he or she will not receive deferred action and may instead be deported. While U.S. Citizenship and Immigration Services (USCIS) lists several of the misdemeanor convictions it considers “significant” and therefore disqualifying, it is still unclear how USCIS will analyze this standard and who will be responsible for determining whether a misdemeanor conviction is “significant.” In addition, if an applicant has committed three “non-significant” misdemeanors, USCIS may reject the application and he or she could instead be deported. Further, if a person took a pre-trial intervention, nolo plea, or had a withheld or deferred adjudication, he or she may still have criminal convictions under immigration law.
No Appeal Process
There is no appeal process for denied applications and it is unclear whether individuals may reapply if they are denied initially for any reason. If an application is denied, the government will have access to that person’s biographical information, and he or she could be referred to Immigration and Customs Enforcement (ICE) for deportation proceedings.
While unlawful presence will not accrue during the two-year period of deferred action, deferred action does not forgive any previous or subsequent periods of unlawful presence.
DHS has directed ICE and USCIS to develop and implement application procedures by mid-August. Although deferred action could potentially change the lives of young people who call America home, there may be even greater risks involved in applying for these benefits. If someone comes out of the shadows to apply and is rejected or is unable to maintain or extend deferred action, the individual faces deportation to a country he or she may never have known.
Tali Orner is a founding member of Orner & O’Brien, LLC. She concentrates her practice in immigration law.