The DREAM Act did NOT pass. No executive order was issued. The form to apply for Deferred Action IS NOT yet available. But, those are the missleading news you might have heard after Friday’s announcement issued by the Department of Homeland Security (DHS) Secretary Janet Napolitano granting deferred action to undocumented youth who meet certain criteria.
We know there is some misinformation and confusion going around so in order to answer your questions we are hosting, the first on the line of more to come, Deferred Action Workshop on Monday, June 18th at 6:30pm at our office located on 339 Lafayette St, Buzzer #8 Room 304. New York, NY 10012.
The livestream for this meeting, in case you cannot make or are upstate, is: http://ustre.am/tJid
Attorney Lauren A. Burke will be answering your questions about Deferred Action, its meaning, who can benefit, and what to do if you decide to apply for it, among other questions you may have.
Bring your friends and get informed!
Here are some pros and cons of deferred action provided by David Bennion, an immigration attorney:
Pros:
- It allows people to apply affirmatively, not just after they have been caught up in the deportation process. This will potentially benefit a much greater number of people than previous guidance.
- Work permits are available. Many, though not all, of applicants granted deferred action will be eligible for work permits.
- A two year period of deferred action will be granted to successful applicants.
- The policy affects all three immigration agencies. Today’s policy memo follows a series of similar memos over the past two years which have done little to stem the tide of record deportationsunder this president. Previous guidance on exercising prosecutorial discretion in line with enforcement priorities was directed only to Immigration and Customs Enforcement (ICE), which ignored the guidance. Today’s memo comes from Secretary Napolitano and is directed to all three agencies: Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and ICE. Hopefully the policy will be applied more comprehensively across the agencies than the prosecutorial discretion policy has been.
- USCIS will have more control over the process. The majority of applications will be reviewed by USCIS, which adjudicates applications for immigration benefits and is not formally tasked with immigration enforcement.
Cons:
- This is not an executive order. The policy does not grant Deferred Enforced Departure (DED) or Temporary Protected Status (TPS), which are designated by the President by executive order on humanitarian grounds. Even though the President decides who does or doesn’t qualify for TPS and DED, these statuses carry certain due process protections. Applications can be appealed in immigration court if initially denied. TPS or DED status cannot be terminated without cause. In contrast, the policy announced today only grants deferred action. There is no right to appeal a denial. While applicants can ask for supervisory review of an initial denial, that supervisory decision will be final.
- DHS can deny any application in its discretion even if the applicant meets the eligibility criteria. We will likely see many of the same due process problems that we have seen with the prosecutorial discretion policy, which led to a grant rate of 1.5%. There will be no impartial adjudicator, no right to meaningful review of faulty decisions, and no formalized way to present and evaluate evidence or legal arguments.
- The provisions dealing with criminal convictions will allow DHS to wrongly deny applications. The “significant misdemeanor” is a new concept in immigration law unique to this policy. Some convictions will not clearly fall inside or outside the “significant misdemeanor” category, and USCIS officers lack the guidance and expertise to navigate those waters. In its prosecutorial discretion review, DHS has treated any arrest as equivalent to a conviction. This policy turns the presumption of innocence on its head, denying undocumented people the protections afforded citizens in the criminal justice system. Since the policy announced today is based solely on the discretion of DHS, the risk is high that DHS will continue to treat any contact with the criminal justice system as fatal to an application, regardless of whether there was a conviction.
- Deferred action, once granted, can be terminated at any time without justification or review.
- Many people will be deported simply for applying for deferred action. USCIS will refer some denied cases to ICE for initiation of removal proceedings. Since there is no right to appeal an erroneous decision by USCIS under the new policy, mistakes may go uncorrected and lead to the deportation of qualified applicants.
- Immigration enforcement officers are likely to ignore the new policy. Applications for deferred action will be adjudicated only by USCIS officers and ICE attorneys. ICE enforcement officers and Border Patrol officers have been instructed to follow the policy guidelines. But ICE and Border Patrol officers ignored prior instructions to follow the prosecutorial discretion guidelines and faced no consequences. The proposed remedy when ICE or Border Patrol officers violate the new guidelines is to call the Law Enforcement Support Center hotline or complain to the ICE Office of the Public Advocate. Many people who are wrongly targeted by ICE or Border Patrol will not be in a position to do either of those things, and their cases will never come to the attention of the public or those who are tasked with monitoring implementation of this policy. DHS’s internal monitoring procedures are opaque and ineffective, so even when complaints are made, they are not likely to produce results.
Read more HERE.
See you on Monday and stay informed. Contact us at info@nysylc.org for any pressing questions.
Best,
The NYSYLC
