June 21, 2012

On Friday, June 15, 2012, President Obama announced that certain DREAMers (young people without lawful immigration status who were brought here as children by their parents) would be eligible to apply for Deferred Action, a temporary relief which would allow them to remain in the United States without threat of imminent deportation for up to two years, subject to renewal. Those granted Deferred Action will be eligible to apply for work authorization. The Deferred Action policy for DREAMers was also formalized on Friday in a memo from Janet Napolitano, Secretary of Homeland Security.

Per that memo, DREAMers who are eligible for Deferred Action must meet all of these criteria:

• They must have entered the United States before age 16.
• They must be able to prove at least five years of continuous physical presence in the United States prior to June 15, 2012, through school records, medical records, employment, military or financial records.
• They must be currently enrolled in school, or have graduated from high school or college, or have earned a GED, or served in the US Armed Forces (*But people without lawful immigration status are not currently eligible to enlist in the Armed Forces, even with Deferred Action and work authorization).
• They must be between the ages of 15 and 30.
• They will have to undergo a background check, and will be ineligible for Deferred Action if they have been convicted of a felony, a particularly serious misdemeanor (such as DUI) or multiple misdemeanors.

*There is no application process in place at this time, so there is no formal way to apply for relief yet!

However, individuals who are already in removal proceedings may contact the ICE counsel in charge of their case with written documentation establishing that they meet all of the above criteria.

On Monday, June 18, 2012, USCIS Director Alejandro Mayorkas, ICE Director John Morton and CBP Acting Commissioner David Aguilar held a joint stakeholders teleconference to discuss the new policy. They established that the policy authorizes all three sub-agencies of DHS to make case-by-case decisions to exercise prosecutorial discretion not to remove eligible individuals.

In practice, this will have three basic elements:

1. Non-issuance of Notices to Appear.
2. Grants of relief for eligible individuals in proceedings.
3. Establishment of an affirmative request process for those not already in proceedings. They clarified answers to some key questions during this stakeholder call.

• DREAMers already subject to an outstanding final order of removal will be eligible for Deferred Action under this policy, but they will have to apply through USCIS, not through ICE, and must await the Service’s establishment of a Deferred Action request process.
• USCIS will develop parameters for an application process in the next 60 days. As no process has yet been developed, they are still considering what documents to collect, and what form the proof of a grant of Deferred Action will take.
• A grant of Deferred Action confers no status, but tolls unlawful presence.
• Once an individual is granted Deferred Action, they will have to apply to USCIS for employment authorization, on Form I-765.
• Individuals whose requests for Deferred Action are denied will not be automatically placed in removal proceedings. If a request is denied and the applicant has no criminal history, the case will be governed by the Nov. 7, 2011, USCIS memo on issuance of Notices to Appear. Likewise, those granted Deferred Action will not be automatically referred to ICE once this program ends. (Beware DHS assurances on this score: some risk remains.)
• A request for Deferred Action by a DREAMer will not by itself serve as a trigger for investigation of their potentially-removable family members present in the United States.
• All branches of DHS will aggressively investigate notario fraud, to ensure that implementation of this policy is marked by integrity.

The mechanisms of this policy are not new. Deferred Action has existed since 1975, and entails no form nor specific request procedures. It succeeded the “non-priority” program in the wake of the John Lennon case, when INS revised and published its previously non-public Operations Instructions.

“In every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category.” -[Legacy]Immigration and Naturalization Service, Operations Instructions, O.I. 103.1(a)(1)(ii).

Although the Operations Instructions were later rescinded, and the INS was dismantled in 2002 to create the Department of Homeland Security, Deferred Action survives as an exercise of prosecutorial discretion. While not enshrined in regulation, it has been defined by periodic internal agency guidelines and formal policy memoranda, The most recent of these came in a pair of policy memos from ICE Director John Morton at this time a year ago. The first Morton memo, on factors warranting the exercise of prosecutorial discretion, urged ICE agents and attorneys to refrain from removing individuals with close family, education, military and other community ties to the United States. The second Morton memo urged similar leniency with respect to victims of crimes, witnesses to crimes, and good faith plaintiffs in civil rights cases. Both invoke the goal of focusing the agency’s limited resources on the removal of criminals who pose a serious threat to public safety or national security.

To date, implementation of the Morton memos on prosecutorial discretion has been stingy at best. When Mr. Morton testified before the House Sub-Committee on Homeland Security, he admitted that only 1% of pending deportation and removal cases had been tabled under the guidelines he promulgated last summer.

What President Obama did was to announce a specific directive implementing this policy, so that DHS can stop wasting its resources on deporting a subset of young immigrants who are not criminals, who know only the US as their home, and whose very presence in this country was not their own decision.

Removal proceedings are costly, so administrative closure or termination of proceedings against young people who overstayed a visa or entered without inspection years ago as a result of choices made by their parents will save government resources that could be better spent removing serious criminals. Allowing these young people to apply for employment authorization will bring in new fee revenue. This policy directive creates a net gain for DHS in purely financial terms, aside from its obvious humanitarian and public policy benefits, plus the long-term economic benefits of allowing young people anxious to contribute to their country to remain here, to pursue their education and careers, to become the Americans they already believe themselves to be.