On Friday June 15, 2012, the Obama administration announced that it will halt the deportation of young immigrants who were brought to the country as minors and meet other specific requirements. The action is an affirmative and bold response to the broken immigration system and temporarily eliminates the possibility of deportation for youths who would qualify for relief under the DREAM Act. This action gives Congress the space needed to reach a consensus and craft a bipartisan solution that gives permanent residence to qualifying young people.
According to a memorandum from the Department of Homeland Security, eligible immigrants may apply for a two-year renewable grant of “deferred action” if they meet the following criteria:
· entered the United States before age 16;
· are 30 years old or younger;
· have lived continuously in the United States for at least five years;
· have not been convicted of a felony or significant misdemeanor; and
· are currently in school, have graduated from high school or earned a GED, or served in the military
Although not granted lawful immigration status, recipients will be able to obtain work permits under existing regulations.
Deferred action has long been used by U.S. presidents to prevent the removal of immigrants for humanitarian reasons. A grant of deferred action is an exercise of prosecutorial discretion that the Department of Homeland Security will not seek the removal of the individual or will not execute a removal order against the individual during a specified period of time while the grant remains in effect. Statutory authority for deferred action is likely the overall authority of the DHS Secretary for administration and enforcement of the Act found at INA §103(a).
Deferred action is also recognized in the regulations as an act of “administrative convenience to the government” to give lower priority for prosecution in certain cases. 8 CFR §274a.12(c)(14). The regulations also authorize the Department of Homeland Security to grant employment authorization for recipients of DA and authorization to travel. 8 CFR §274a.12(c)(14). Deferred action is intended for individuals already present in the United States. It would not provide an individual with permanent immigration status in the United States, but rather, it “defers” initiation or completion of removal proceedings against the individual.
Young immigrants who qualify for deferred action will be permitted to apply for work permits, but they will not receive green cards or any other lawful immigration status, will not be permitted to sponsor family members, and may be unable to travel abroad.
According to the memo and a Q&A released by the administration, immigrants who are not currently in removal proceedings will have to submit applications demonstrating their eligibility for deferred action. Meanwhile, immigrants who are currently in removal proceedings will be eligible for deferred action, even if they previously declined an offer of “administrative closure” under the ongoing case review process. Although eligibility determinations will be made on a case-by-case basis, administration officials said that immigrants who satisfy the criteria in the memo should presumptively be granted deferred action.