On June 15, 2012, the Obama Administration announced that it would implement a new program to grant deferred action to undocumented aliens who were brought to the United States at a young age. This action came about one year after U.S. Immigration and Customs Enforcement (ICE) announced that it would concentrate its enforcement resources mostly on cases involving criminal issues. ICE published criteria that the agency would use to determine whether to exercise prosecutorial discretion to close cases already pending in immigration court. Together, these actions signaled a greater tolerance for aliens who were present in the United States in violation of immigration law, but who did not pose a danger to the public or to national security.
Two months after the Administration announced its deferred action program, called Deferred Action for Childhood Arrivals or DACA, it promulgated guidelines on how an undocumented alien could apply for the benefit. U.S. Citizenship and Immigration Services (USCIS) also published the criteria that it would use in deciding whether to grant deferred action. Through the guidelines, USCIS provided detailed instructions on the documentation necessary to apply, and explained how it planned to use the information submitted.
Deferred action is itself simply a promise by the U.S. Government that, although an alien is present in the United States illegally, it would not seek the removal or deportation of that alien. It is an exercise of executive discretion. That is, as the chief law enforcement officer, the President has the authority to decide which cases get brought to immigration court for removal, and which cases will not. It is much like the discretion a police officer has in deciding whether or not to arrest a person even when the officer has seen that person break the law.
Above all, it must be remembered that deferred action is based on an act of executive discretion. It is not based on law. That means that it is not a grant of legal immigration status. It is not a path to permanent residency or citizenship. Under the law, a person who has been granted deferred action can be granted the authority to work in the United States. But, it is not a permanent solution to the problem of illegal status.
To qualify for the DACA program, an undocumented alien must meet certain criteria. They are: (1) the alien must be under the age of 31 as of June 15, 2012; (2) the alien must have been brought to the United States before his or her 16th birthday; (3) the alien must have continuously resided in the United States since June 15, 2007 up to the present; (4) the alien must have been physically present in the United States on June 15, 2012; (5) the alien must have entered without inspection before June 15, 2012, or had his or her lawful immigration status expired as of June 15, 2012; (6) the alien must currently be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and (7) the alien must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and not otherwise pose a threat to national security or public safety.
To apply, the alien must submit an application on form I-821D, an application for work authorization on form I-765, a worksheet disclosing income and expenses to determine if work authorization is necessary on form I-765WS, and a filing fee of $465. As part of the process, the Government will take fingerprints and perform a background check.
Through its Frequently Asked Questions, USCIS promises that it will not turn over the information gathered through the application to ICE to begin removal proceedings, unless the application shows serious criminal activity, fraud or that the applicant poses a threat to national security.
Some Are Reluctant to Apply
Although the program promises significant benefits to those who qualify (a promise not to be deported, and possible work authorization), early reports have been that many aliens who meet the criteria are reluctant to apply. Many recognize that this is not a permanent solution to their situation, and are distrustful of the Administration’s promises not to use the information for deportation.
Such concerns are indeed well-founded. As mentioned, deferred action is a grant of executive discretion. It is not law. Therefore, it creates no rights or privileges. Indeed, USCIS itself, on its Frequently Asked Questions page, states that it could change its promise not to use the information submitted for enforcement purposes at any time, and without prior warning.
Consideration must also be given to the fact that this is a presidential election year. Even if the Obama Administration is committed to the program, the race appears close. This could mean that the country will have a new president in January. The new president would not be bound to follow the policy choices of the Obama Administration with respect to the DACA program.
To that end, Republican presidential candidate Mitt Romney has announced that he would not seek the deportation of undocumented aliens who have been granted deferred action under the DACA program. On the other hand, he would not continue with the DACA program in his administration.
This announcement creates somewhat of an incentive for undocumented aliens to apply for deferred action now. If the benefit is granted before President Obama leaves office, then they can hold Romney to his promise. But, if an undocumented alien waits, and Romney does become president, then that alien could lose this opportunity to obtain the promise of not being removed along with work authorization. Indeed, it has been reported that Romney’s position on immigration issues has already prompted some undocumented aliens to apply for deferred action now.
This leaves many undocumented aliens with the decision of whether to apply for deferred action, or wait for some more permanent form of immigration reform. Whether to apply is a decision that should be made only after considering the risks and weighing the potential benefits.
Criminal Records Must be Given Careful Consideration
For example, those with criminal records should give very careful consideration before applying. USCIS has stated that those with a felony conviction, a conviction for a significant misdemeanor, or three convictions for any other misdemeanors will not qualify. The Frequently Asked Questions gives detailed guidance on what exactly constitutes a significant misdemeanor. If an alien applies, and has not given full consideration to his or her criminal record, then USCIS may very well refer that alien to ICE for removal proceedings.
Risks and Potential Benefits Should be Weighed Before Applying
In the end, the question will be whether the promise of the legal ability to accept employment in the United States outweighs the risks posed by calling attention to one’s self and one’s illegal immigration status. Such a determination is personal in nature, and ought to be made after seeking competent legal advice.