The basic answer to the question posed in the title of this post is, we don’t know yet. Until the rules and regulations regarding the program are released in mid-August, immigration experts can only guess. However, there is some information you can share with your clients, and there are steps that they themselves can take to prepare their case.
What is the new policy?
The memo issued by Secretary Napolitano on June 15, 2012, sets forth in broad terms how immigration laws should be enforced against young people who were brought to the U.S. as children and only know the U.S. as home. It states that in order to be considered “for an exercise of prosecutorial discretion” in the context of deportation enforcement, the following criteria must be satisfied:
* Came to the U.S. under the age of 16;
* Has continuously lived in the U.S. for at least the past five years, as of June 15, 2012;
* Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces o fthe United States;
* Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety;
* Is not older than 30 years of age.
What is a “significant misdemeanor”?
The phrase is unclear, but experts say that it will likely include offenses such as driving under the influence, possession of a controlled substance (including marijuana), obstruction of justice, assault, and theft. Many of these crimes can subject individuals to mandatory detention, so do not assume that a minor misdemeanor conviction is not considered a “significant” misdemeanor.
What could count as a “public safety threat”?
Again, immigration experts do not know. Officials may look at the facts behind juvenile delinquency adjudications as well as dismissed criminal charges to make a determination as to whether someone poses a safety threat, so the following will be relevant:
*Juvenile delinquency adjudications
*Any arrest or dismissed charge
*Any connections with gang activity or a history of having been stopped and questioned about gangs or gang membership
What could count as a “national security threat”?
Immigration experts do not know, but it will not be limited to criminal convictions. The Department of Homeland Security characterizes it very broadly as “participation in activities that threaten the United States.”
What should the client do while waiting for the official regulations to be announced?
*Get a copy of their record from the court in which the case was heard, including all juvenile delinquency adjudications. Information on how to get these records may generally be found on the local county website or state government website. Get records from all states in which they have been arrested or convicted.
*Get copies of police reports related to the offenses for which they have been charged or convicted.
*Encourage them to consult with a nonprofit organization, an immigration attorney or immigration advocate who is experienced in deportation defense or the immigration consequences of criminal convictions. Make sure this expert reviews all arrest information and criminal conviction documents. Advise them NOT to consult with “Notarios” if they have a criminal history, as they lack the experience to handle these matters.
What should individuals who face imminent removal from the United States and believe they can demonstrate that they satisfy the eligibility criteria do?
They should immediately contact:
- Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week);
- ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday) or by e-mail atEROPublicAdvocate@ice.dhs.gov.
Source: AILA InfoNet Doc. no. 12062241 (posted June 28, 2012)
Letter to Secretary Napolitano with policy and operational recommendations from the American Immigration Lawyers Association and others (June 26, 2012)
Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of DREAM Act Students, William & Mary Bill of Rights Journal, Vol. 21 (2012).
In June 2011, with the release of what came to be known as the “Morton Memo,” there were developments in the issue of Deferred Action (DA) and the extent to which President Obama’s Administration would extend a form of prosecutorial discretion to DREAM Act students and others in the country without legal status. The Obama administration undertook a test-case review of pending immigration cases, with an eye toward freezing deportations of unauthorized residents who had no criminal records and then expanding the program of Prosecutorial Discretion nationwide. The plans were to favor the elderly, children who have been in the country more than five years, students who came to the U.S. under the age of 16 and were enrolled in a college degree program, and victims of domestic violence: their pending deportations could be put on hold under the test program, as low priority populations. In the predictable thermodynamics of immigration politics, however, there was an equal and opposite reaction against employing such discretion, particularly for the population of potential DREAM Act enrollees. DA, however advantageous in stopping the clock or in throwing sand into the deportation and removal gears, is not a true or final resolution of undocumented immigration status, and will likely leave many DREAMers unassisted and ineligible for any ultimate change in their legal status, especially if they are not given employment authorization. The resort to discretionary authority rather than the more long-lasting comprehensive immigration statutory reform has led to polarized nativist and Republican political responses, inasmuch as there is no overarching agreement on the metrics of enforcement or adjudication.
This article examines the historic roots of deferred action and other forms of prosecutorial discretion, noting their widespread use by all modern administrations, the political ramifications of the policy’s expansion, and the disappointing early returns from the review and process. Even if it were to extend an inchoate forum of relief, ICE would not ultimately resolve the students’ liminal status, absent employment authorization and other final relief or more permanent measures. And without more accessible comprehensive immigration reform authority to resolve the many unresolvable cases, the Administration will only be able to whittle down a limited number of low priority cases, a number that will likely remain relatively small, even with enormous organizational resources devoted to the review effort. And, perhaps worse, there will be false hopes extended to DREAM Act students, who have languished for a long period with virtually no relief available to them. Their desperate pleas will have been for naught, and their purgatory will be extended in unproductive fashion.
The Appendix catalogs several hundred newspaper stories and web entries on DREAM Act students, an important feature of the public discourse involving these students.
Are you aware of other resources or helpful information on this topic? Please share in the comments.