The Obama Administration recently took the initiative to provide temporary relief from removal and work authorization to certain undocumented immigrants under age 30. On June 15, 2012, rather than wait for Congress to pass the DREAM Act (Development, Relief, and Education for Alien Minors Act), Secretary of Homeland Security Janet Napolitano announced that certain undocumented immigrants who were brought to the U.S. before turning age 16 may apply for “deferred action.”
Secretary Napolitano stated, “Our nation’s immigration laws must be enforced in a firm and sensible manner.” She added, “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”
The new Obama policy has been called “Deferred Action for DREAMers” because it mimics some of the proposed requirements and benefits of the DREAM Act that stalled in Congress. First introduced in 2001, the DREAM Act generally offers undocumented immigrants, who came into the U.S. when they were children, a pathway to citizenship by earning a college degree or serving in the military. Although it applies to all immigrants, the proposed law would affect the Latino community the most due to the sheer number of undocumented Latino children who have been brought into the U.S. In essence, President Obama used his executive power to stop the removal of those who would qualify for benefits under the DREAM Act through prosecutorial discretion, which has long existed.
What is prosecutorial discretion?
The government prosecutor who represents the Department of Homeland Security (DHS) has the discretion to decide who to place in removal proceedings, what charges to file, when to drop the charges, and how to spend resources on immigration enforcement.
What is deferred action?
Deferred action is when the DHS agrees to not place a foreign national in removal proceedings or to not execute a removal order against him or her. Under the Obama policy, undocumented immigrants who do not present a risk to national security or public safety and meet the key criteria may apply for deferred action, including work authorization, for a period of two years, subject to renewal.
Who qualifies for deferred action under the Obama Policy?
Even though the Obama policy takes effect immediately, U.S. Citizen and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) expect to begin implementation of the application processes within sixty days of the announcement. Under this plan, individuals who show they meet the following criteria will be eligible for an exercise of discretion and deferred action, on a case-by case-basis:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for a least five years preceding the date of the announcement and are present in the United States on the date of this announcement;
- Are currently in school, have graduated from high school, have obtained a general education development certificate (GED), 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;
- Are not above the age of thirty.
The announcement states, “only those individuals who can prove, through verifiable documentation that they meet these criteria will be eligible for deferred action.” Most immigrants will find it difficult to prove their case on their own. Therefore, those who believe they meet the criteria should seek an experienced immigration attorney to help with presenting the necessary information and documentary evidence.
The use of prosecutorial discretion confers no substantive rights, immigration status, or pathway to citizenship. Only Congress, acting through its legislative authority, can confer these rights. As such, comprehensive immigration reform and the DREAM Act remain an important topic for political debate leading up to the presidential and legislative elections.
Although the Obama policy does not provide permanent relief from removal or a path to permanent resident or citizenship status, it is likely to earn points for the President among Latino voters. It protects the least culpable immigrants who were brought into the U.S. as children and deserve a chance to legally remain in a country that they have always called home. The policy has stirred up ongoing debates on the need for comprehensive immigration reform and for the DREAM Act, which is mostly in Congress’ hands.