Under a new process of “deferred action” announced by the Department of Homeland Security (DHS), qualifying undocumented immigrants will get a reprieve from possible deportation for a two-year, renewable period. They may also obtain employment authorization. The announcement has brought up criticism based on questions of the policy’s constitutionality. Supporters say that the policy is a necessary step in creating a “sensible immigration policy” and in retaining skilled workers who might otherwise face removal. It is at best a temporary measure, since a new administration could change the policy overnight. Because the policy relies on DHS’s “prosecutorial discretion,” however, it does not confer any specific immigration status on its beneficiaries.
People who meet DHS’s qualifications may apply for deferred action, which will be valid for two years and will be renewable. DHS instructed its various immigration agencies to have the application process ready within two months. Deferrals are available to immigrants who arrived here before they turned sixteen, who are now thirty years old or younger, who resided in the U.S. for at least five years prior to June 15, 2012, and who were actually here on June 15. Anyone with a significant criminal record, or who the government thinks poses a threat to national security, is ineligible. Applicants must either be enrolled in school, have a high school diploma or G.E.D., or have an honorable discharge from the U.S. Armed Forces or Coast Guard.
The deferred action policy is very similar to the Development, Relief, and Education for Alien Minors Act, or DREAM Act, a proposed law that Congress has considered, but never passed, several times in the past decade. The DREAM Act would apply to young undocumented immigrants who came to the U.S. as children, and who either complete a course of higher education or serve in the U.S. military. People would be able to obtain work authorization, and those who successfully complete the DREAM Act’s requirements would be able to obtain legal permanent residence.
Criticism of the policy focuses on whether the Executive Branch can enact many of the key provisions of the DREAM Act without Congress. Some critics have called the policy an unconstitutional overreach of the president’s authority. The idea of “prosecutorial discretion,” that law enforcement agencies and prosecutors can autonomously decide not to pursue certain cases, is well established in the law. Opponents may be able to challenge granting work authorization to people through this policy, since that might require more specific statutory authorization. It is too early to know if anyone intends to make a challenge.
Immigrants and their advocates need to understand that, unlike the DREAM Act, DHS’s policy only provides temporary relief. This puts many immigrants in a dilemma. The policy could benefit up to 800,000 young immigrants, but it requires coming forward and possibly exposing one’s undocumented status. Deferred action does not give a person any rights towards legal immigration status. All a person receives in deferred action is a promise from the government not to prosecute them for a set period of time. It is a start, but not a long-term solution.
The New York and New Jersey immigration lawyers at Samuel C. Berger, P.C. help immigrants seeking visas to come to, or remain in, the United States. To schedule a consultation with one of our skilled attorneys today, contact us online or at (212) 380-8117.
More Blog Posts:
Immigration Reform on the Agenda for High-Tech Companies Lobbying Congress, New York & New Jersey Immigration Lawyer Blog, April 27, 2012
Same-Sex Marriage Gives Man a Reprieve from Deportation, but No Legal Rights, New York & New Jersey Immigration Lawyer Blog, April 13, 2012
Schools Would Have to Verify Students’ Immigration Status Under Proposed State Law, New York & New Jersey Immigration Lawyer Blog, February 1, 2012
Photo credit: ‘White House lawn’ by Daniel Schwen [GFDL, CC-BY-SA-3.0 or CC-BY-SA-2.5], via Wikimedia Commons.