July 24, 2012

On June 15, 2012, the Obama Administration announced that the Department of Homeland Security plans to implement a program that grants deferred action to undocumented immigrants in the United States, and to allow them to receive work authorization. See Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. www.dhs.gov.

Specifically, under this program, individuals who face imminent removal from the United States and who believe they can demonstrate that they satisfy the eligibility criteria should immediately contact Law Enforcement Support Centers and/or ICE Office of Public Advocate

• Have arrived in the U.S. when they were under the age of sixteen;
• Have continuously resided in the U.S. for at least five years prior to June 15, 2012 and present in the U.S. on June 15, 2012;
• Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces;
• Not have been convicted of a felony offense, a "significant misdemeanor offense," three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety; and
• Under thirty-one years old on June 15, 2012.

The deferred action offer will be available to those in proceedings, as well as those who apply affirmatively.

The politics behind this announcement are fairly clear -- especially during an election year and coming from an Administration that has been hindered the implementation of any significant immigration reform during its entire first term. It was important for the Obama Administration to show some action on immigration issues and what better way to do it than by trying to administratively grant the equivalent of the Dream Act. This, of course, has caused a firestorm of protest from the other side of the aisle. Twenty Senate Republicans have sent a letter to the White House accusing the President of acting without authority and intentionally bypassing Congress and the American people. Many have threatened to file suit against the Administration, and the Republican Candidate for President has implied he would vacate this Policy should he be elected.

Where does this leave potential beneficiaries who are contemplating applying for this program affirmatively? Some of the same practical issues that are raised by the proposed current implementation of this rule are raised in the political sphere:

• What will happen if the directive is challenged in court?
• Will individuals who have applied for deferred action be required to leave the U.S. if such a challenge is upheld?
• How will the administration handle family members, specifically the parents of applicants who violated federal immigration law?
• What will happen if Governor Romney is elected? Will his Administration overturn this policy?
• Absent congressional action, what will happen in two years to the individuals who are granted deferred action?
• Will recipients of deterred action be eligible for receipt of advance parole?
• What criteria will be used to decide who gets work authorizations and who does not?
• • Which other departments and agencies will be consulted and will work with the Department of Homeland Security on the implementation of this directive?

The list of issues goes on an on.

The Administration has said that affirmative applications for deferred action and employment authorization will be accepted beginning in mid-August. Should those individuals who are eligible for this relief apply for it? There are many differing opinions. It is important however, to obtain competent immigration counsel, before making such an important decision. There are risks of withdrawal of the policy as well as exposure of the individual and the individual’s family to enforcement authorities.

The sad fact remains that Congress still needs to act to fix our broken immigration system and specifically to address those individuals that are slated to benefit from this new deferred action policy.