Department of Homeland Security Announces Deferred Action for Eligible DREAMers

By Kim Tremblay & Amber L. Blasingame, Associate Attorneys

On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that the government will offer indefinite relief from deportation for young immigrants brought to the United States as minors.  Young immigrants, between the ages of 15 and 30 years old as of June 15, 2012, not in deportation proceedings will also be eligible to apply for deferred action. 

Although this is not the DREAM legislation (Development, Relief, and Education for Alien Minors Act) that many have been pushing Congress to enact for years, it is a step in the right direction.  It will allow many young immigrants to come out of the shadows, support themselves, and use the skills they acquired in American schools in the workplace.  The DHS initiative will also provide more opportunities for young immigrants to apply and attend college or university, since many US post-secondary institutes require evidence of legal status for admission.  The department estimates that the new policy may benefit as many as 800,000 potential DREAMers.  However, many questions remain unanswered as both USCIS and ICE have 60 days to implement policies and procedures for filing deferred action requests.

Based on the results of DHS’s prior prosecutorial discretion initiative, it also remains to be seen whether this new policy will be any more successful for young immigrants in deportation proceedings.  The August 2011 DHS memo initiated a policy based on priorities to reduce the immigration court’s overbooked docket.  Under the prosecutorial discretion policy , DHS reviewed all 350,000 pending deportation cases nationwide and offered to administratively close about two percent of cases that were not priorities for DHS to pursue.  This was a much lower number than anticipated.  Thus, for young immigrants already in removal proceedings, it remains unclear whether this new policy will bring about much change. 

More positive outcomes are expected for young immigrants who are not in deportation proceedings.  Applications for individuals who are not in deportation proceedings cannot be filed until USCIS implements a filing procedure.  In the meantime, however, potential DREAMers should consult attorneys to determine their eligibility for the program and start gathering documents to show that they meet the requirements. They should beware of individuals or agencies who claim they can help but who are not licensed to represent and assist individuals in this legal process. 

Potential DREAMers physically present in the United States should also get documentation to show they are here from today and until deferred action is granted.  They should also hold on to anything to show they were present on June 15, 2012.   

Individuals must meet the following requirements to be considered for deferred action:

• Entered the United States before age 16 and not be above 30 years of age;
• Have continuously resided in the U.S. for 5 years as of June 15, 2012;
• Were physically present in the U.S. on June 15, 2012;
• Are currently in school, have graduated from high school or earned a GED, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a serious crime or multiple minor crimes that pose a threat to the national security or public safety.

Those who meet the criteria will be qualified to obtain deferred action for two years, subject to renewal for an indefinite period of time, and will be eligible to apply for work authorization if they can show financial need.



Related Articles:
http://immigrationimpact.com/2012/06/15/president-obama-to-halt-removal-of-dreamers/
http://aila.org/content/default.aspx?docid=40173
http://aila.org/content/default.aspx?docid=40171
http://aila.org/content/default.aspx?docid=40168
http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

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New Proposed Rule Would Decrease Time Abroad for Many Consular Processing Cases

On Friday, Alejandro Mayorkas, the director of United States Citizenship and Immigration Services, announced a proposed rule which could help thousands of families seeking to legalize the immigration status of one of their members.

Currently, if a person present in the United States entered the country without being inspected, she must leave the country in order to gain lawful permanent resident status based on the petition of a spouse or other immediate family member. As soon as they leave the United States, their previous unlawful presence triggers a 3 or 10 year bar to their return. So when they are abroad in their home country, they must file for and obtain a waiver of their unlawful presence bars before they can return. In order to obtain the waiver, they must establish that their absence from the United States is causing "extreme hardship" to their qualifying family members in the United States who are U.S. citizens or lawful permanent residents.

The problem is that the adjudication process for these waivers can sometimes take a year or longer. So at a minimum, the families face a long period of separation while trying to become legal. And of course, there is no guarantee that the waiver will be approved after the long adjudication.

If implemented, the new proposed process would allow those seeking to legalize their status through consular processing to submit their waiver applications for pre-approval before leaving the United States. While such applicants would still have to leave the United States to receive their status, the new process would have the potential to drastically decrease the time that they are abroad away from their citizen spouses and families.

As of now, the new rule is just a proposal and has not been implemented. There is no date certain for implementation. Also, it appears that the new pre-approval process would only be available for the waiver of unlawful presence bars. Those who also need waivers for bars triggered by criminal convictions or past fraud would have to continue to follow the old process where their waivers are submitted and adjudicated abroad.

Click Here to see the New York Times Editorial

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First Reported Cases Benefiting from 8/18/11 Obama Administration Announcement

Scattered reports in the media have indicated that the August 18, 2011 announcement by the Obama Administration may be starting to have some effect.

CNN reports that an Arizona attorney was contacted by Department of Homeland Security (DHS) officials and told that she should request that her case be dismissed. The Huffington Post reports that two teenage men in Georgia have also had their deportation cases closed under the new policy.

Despite these reports of what seems to be an implementation of the August 18 announcement, it is important to recognize that the announcement is not an amnesty and does not grant anyone legal status. There is no new application that can be filed or that a person can sign up for. The announcement does not create any new way to file for a work permit either. The American Immigration Lawyers Association (AILA) put out a consumer advisory warning that there is no sure way to know whether one's case would be safely considered "low priority" under the new announcement and no sure way to know that a particular "low priority" case won't be prosecuted anyway.

While it will be interesting to see if these sporadic reports turn into a general trend of closing cases deemed "low priority" by DHS, for the time being there seems to be little change on the ground.

To read the CNN article, click here;

For the Huffington Post article, click here;

To review the AILA consumer advisory, click here.

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The "A" Word

After previous failures to get any traction on comprehensive immigration reform or the DREAM Act, President Obama has again ramped up his efforts to call for reform. The outlines of the President's proposed plan are nothing new. He emphasized the need to pore further resources into securing the borders and prosecuting business owners who willfully employ undocumented workers. At the same time, those illegally in the country could begin a legalization process after they (1) admit to having broken the law, (2) pay taxes and a fine, (3) learn English, and (4) undergo background checks to ensure that they have no serious criminal history.

For opponents of reform, the broad outline of the plan will be immediately deemed as unacceptable because it amounts to an amnesty. With so much of the political debate centered on whether or not a given plan is an amnesty, it is probably worth looking at what the word amnesty means.

According to dictionary.com, the definition of "amnesty" is (1) a general pardon for offenses, especially political offenses, against a government, often granted before any trial or conviction; (2) an act of forgiveness for past offenses, especially to a class of persons as a whole; or (3) a forgetting or overlooking of any past offense.

The relevant definition word “pardon” is defined as (1) a release from the penalty of an offense; a remission of penalty, as by a governor; or (2) forgiveness of a serious offense or offender.

Would requiring offenders to (1) admit to having broken the law, (2) pay taxes and a fine, (3) learn English, and (4) undergo background checks to ensure no serious criminal history before they could start a legalization process really be an amnesty? Such requirements seem more akin a mass guilty plea and sanction (a presumably substantial fine and English classes) than a "release from the penalty of an offense" or a "forgetting or overlooking of any past offense."

When a person pleads guilty to DUI, he admits to having broken the law and then is required to pay court costs and fines and often agrees to take classes. DUI and other criminal offenders are not seen as having been granted amnesty.

A reform program should be envisioned as a mass guilty plea with serious sanctions attached. It would be to American society's benefit that fines will be paid, those who do not know English will be required to learn it, and 10 or so million people will no longer be living in the shadows.

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Renewed Push for Immigration Reform

President Obama and congressional leaders met on Tuesday to discuss strategy for a renewed push for Comprehensive Immigration Reform. President Obama will also address the American public on Thursday with a speech dedicated to the need to reform our immigration laws. Hopefully this renewed push will create the momentum needed to pass a reform. Also, Immigration and Customs Enforcement released a memo on Tuesday which lists the agency priorities for detention and removal. The memo indicates that the greatest emphasis should be on detaining and removing those who present a national security threat or a threat to public safety.

For more details, see the Los Angeles Times Article at http://www.latimes.com/news/nationworld/nation/la-na-obama-immigration-20100630,0,6185729.story .

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