School’s out just in time for the Obama Administration to announce today in an interesting political move that it will grant deferred action status for would-be DREAM Act students. (See Spanish version of the announcement.) I say “would-be” DREAM Act students because Congress never did pass the DREAM Act. Various versions of the DREAM Act would have provided a path to legal status and citizenship for many young people whose parents brought them to the US illegally at a young age (or they overstayed visas). Instead, in a political move to attract the Hispanic vote, President Obama (known by many as the “Deporter-in-Chief” for his record-breaking deportation numbers) is offering something less than any prior version of the DREAM Act would have provided. But, at least the President has done something more than Congress has done where children and young people are involved. It’s also the right and moral thing to do under the circumstances and the tools the administration has to work with. See my earlier blog post on the DREAM ACT: A Good Mind is A Terrible Thing to Waste.

President Obama and his administration are constrained by the limits of executive authority and administrative powers. In the end, it is the job of Congress to create or revise categories of legal immigration. In the case of this population, Congress has chosen to do nothing. Therefore, there is no real DREAM Act that is the law of the land. While this program gives qualifying young people some limited welcome relief in the form of a two-year hiatus from removal proceedings or the risk of removal, unfortunately, it does not provide a long term solution to permanent residency or citizenship. Congress still needs to step up to the plate and provide a legislative fix.

Deferred action is part of the government’s larger prosecutorial discretion strategy or tool box. More details about how deferred action relates to PD is found in several ICE memos. A number of immigrant advocacy groups are advocating this deferred action program as “Dreams Come True” and other similar titles. But is it really a dream come true?

What is Deferred Action?

Deferred action is a law enforcement tool for those who are or could be in removal proceedings. It means that the government knows a person is in the U.S. unlawfully, but for the time being, the government exercises its “prosecutorial discretion” (PD) not to remove the person. In other words, law enforcement actions against the person are deferred or postponed. It could be for a short or long period. In this case, DREAMERS will be given two years of deferred action. It is NOT a path to legal status. There is no green card (permanent residence) or citizenship involved whatsoever. It’s just a temporary moratorium not to deport young people.

Historically, Immigration and Customs Enforcement (ICE), the agency that arrests and prosecutes people in civil removal proceedings, has allowed those with deferred action to obtain work authorization (or employment authorization documents – EADs) upon proof of “economic necessity.” However, the government’s ongoing prosecutorial discretion program to administratively close cases does not provide for EADs. This has been a major complaint of the PD program. Only those receiving deferred action or who have had an underlying application for an immigration benefit for relief from removal have been able to get EADs. Thus, the young people in this group will be able to work for two years if granted deferred action status.

Buyer Beware!

Deferred action is a good interim solution for the young people already in removal proceedings because this means their proceedings will be put on hold and continued action will be deferred. But, should people not in proceedings step forward to apply and be included in this program? Don’t forget that this is all a political ploy in an election year. What if Mitt Romney wins the Presidency? How likely is he to continue the program? He hasn’t been too friendly on immigration issues thus far. What if the anti-immigrant crowd wins a majority in Congress, or even if they don’t, the next Congress is just as deadlocked as the current Congress? A recently passed House bill (specifically, Amendment #33, the King Amendment), HR 5855, would prohibit the Administration from exercising prosecutorial discretion and implementation of the “Morton memos” from last year. Furthermore, Congress could not get a full DREAM Act bill passed even in the Obama Administration. Therefore, what happens in two years when deferred action and EADs run out? Although DHS is saying they will be renewable, what about a change in Administration or an antagonistic Congress? No one knows at this point what the future holds. In other words, “he who giveth can taketh away!”

I believe it’s an open question about whether it is worth the risk to step forward if the government does not yet know about young people in unauthorized status. Every individual considering stepping forward should weigh the pros and cons very carefully, preferably in consultation with legal counsel. It’s also very early right now to know just how this program will be implemented or played out. One option is to just wait until after the election to apply (depending upon whether there will be any sign-up expiration dates). Another option is to take the risk and go forward, knowing that if the program ends, the person could end up in removal proceedings. An ICE FAQ memo mentions that DREAMERS who are NOT in proceedings will be able to apply directly to USCIS for deferred action and an EAD, as will those who have a final order of removal.

Who Qualifies?

Individuals can qualify if they:

1. Came to the United States while under the age of sixteen;
2. Continuously resided in the United States for a least five years preceding the date of “this memorandum,” i.e., June 15, 2012. In other words, the person must have lived continuously in the US from June 15, 2007 to June 15, 2012.
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. 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;
5. Are not above the age of thirty.

Note again that deferred action does NOT lead to green cards (permanent residence) or citizenship!

Each case will be decided on its own merits. Continuous residence, physical presence on June 15, 2012, education, military service and economic need must be documented with real, legitimate, authentic evidence from financial, medical, employment, school, and military records.

When Can Applications Be Filed?

Not right now!! USCIS and ICE will begin implementation of the program in 60 days. Therefore, applications are not being accepted before August 15, 2012. Obviously, many details still need to be worked out. Therefore, there is nothing to do right now except to start collecting the information that will be needed to prove identity, date of birth/age, continuous residence, five years continuous physical presence on June 15, 2012, education and/or military service.

Crimes Issues

At the moment, ICE defines “significant misdemeanor offense” as “a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.”

“Multiple” misdemeanor offenses is defined as “three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct.”

“Threats to national security or public safety” mean, after a background check, there are “indicia that an individual poses such a threat….not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.” There are many open questions about this definition: what is meant by “participation in criminal activities”? (suspected of? charged with? convicted of? what type and level of “criminal activities”?) What is meant by “participation in activities that threaten the US”?

What About People Previously Considered for Prosecutorial Discretion?

Individuals who were granted or even rejected offers of prosecutorial discretion in the courts, i.e., offers to have their immigration court removal proceedings “administratively closed,” will be eligible to seek deferred action and EADs upon proof of meeting the requirements. They will apply directly to USCIS.

Persons presently in proceedings who may be in the middle of this process of review, should request deferred action from ICE.

Can Decisions to Deny Deferred Action/EADs be Appealed?

No. However, USCIS already has guidelines about whether and when to put people into removal proceedings. And, ICE will hopefully have procedures in place in the way of supervisory review.

Can Dependents Be Included (i.e., spouses, minor children under 21)?

No.

Can Those Who Receive Deferred Action Travel Abroad?

Unknown at this point. When people are in the US unlawfully, they may accrue “unauthorized stay.” These rules are complex. For many, the act of leaving the US triggers the 3- or 10-year bar to return and may need waivers and a ground for permanent or temporary legal immigration in order to return. DHS is looking into the issue for the group of DREAMERS who receive deferred action. Therefore, no one should consider leaving until the issue is resolved.

Recap About Who Applies Where
1) In proceedings now? Apply to ICE.
2) Have a final order of removal? (i.e., all appeals exhausted?) Apply to USCIS 3) Already received administrative closure? Apply to USCIS.
4) Never been in proceedings? Apply to USCIS.

Consumer Beware: Avoid Scams!

Potential applicants should be aware of who can and cannot submit applications on your behalf. This is highly regulated by the US Justice Department and the US Department of Homeland Security. Authorized individuals include:
– Lawyers in good standing and licensed by any US state (check the state bar website and the DOJ list of disciplined attorneys)
– Accredited Representatives as defined by and listed by DOJ (Check the list of DOJ disciplined accredited representatives )
– Certain law students working under supervision of a licensed attorney or professor – A “reputable individual” (family, friend, clergy) who has not been paid, and who receives permission from USCIS to appear.

In addition, here in the State of Washington, and in several other states, the unauthorized practice of law can be a crime and a cause of action under the consumer protection laws. Notarios, Notary Publics, Immigration Consultants or Assistants and other nonlawyers not meeting the requirements above are not permitted to make appearances or give legal advice. Selection of the category of benefit and the appropriate form is considered by most states to be the giving of legal advice.

Finally, be aware of people who select and/or complete forms for you and then who do not sign the “prepared by” box on the form. This is probably an indication that the person is not authorized to give you advice. The only exceptions are translators/interpreters who only translate the information you give them to put in the boxes. They may not give legal advice. See also www.Stopnotariofraud.org. Don’t forget that making up documents or information is considered to be fraud or misrepresentation, which is a ground for removal. A lot of young people will not have qualifying relatives for waivers. Therefore, steer clear of dealing with anyone who offers to make up documents or facts for your case. It’s far better not to apply at all than to submit false documents and get caught.

Especially for those young people not currently or who have never been in removal proceedings, or those potential applicants with any type of criminal history, it is essential to get proper legal advice from a reputable immigration attorney or DOJ/EOIR accredited representative to determine the risks and benefits of stepping forward to make yourself known to the immigration authorities.

For further information: USCIS: www.uscis.gov, ICE:www.ice.gov, CBP:www.cbp.gov, DHS:www.dhs.gov. Starting June 18, 2012, contact USCIS: 1-800-375-5283 (8 a.m. – 8 p.m.; English and Spanish) or ICE: 1-888-351-4024 (9 a.m. – 5 p.m.; English and Spanish).