ON JUNE 15, 2012, Pres. Obama announced from the White House Rose Garden that the Department of Homeland Security will grant deferred removal action for undocumented youth who meet strict eligibility requirements.
This is welcome news to thousands of alien youth illegally in the United States who will be saved from unjust removal. But their reprieve from removal is for a period of two years with employment authorization, upon proof of economic necessity, subject to renewal. It does not grant permanent lawful status, nor a pathway to obtain permanent lawful status.
The grant of a renewal in increments of two years also allows extension of employment authorization. Moreover, a final order of removal can be deferred for two years, subject to renewal on an individualized basis. It does not excuse past or future unlawful presence.
It strikingly underscores the failure of Pres. Obama to comply with his election promise to pass comprehensive immigration reform, let alone the Dream Act for undocumented youth.
Strict eligibility requirements for Deferred Removal Action
Not all undocumented youth are covered by the policy change under Sec. Napolitano’s June 15, 2012 Memorandum, only those who:
– have come to the United States when they were under sixteen (16) years of age;
– have continuously resided in the United States for at least five (5) years prior June 15, 2012, and have been present in the United States on June 15, 2012;
– are currently in school, have graduated from high school in the United States, have General Education Development (GED) certificate in the United States, or have been honorably discharged as a veterans of US Coast Guard or the US Armed Forces;
– have not been convicted of a felony, a “significant misdemeanor”, three or more “non-significant misdemeanors”, or otherwise not pose threat to national security or public safety; and
– are not above the age of thirty (30) years on June 15, 2012.
Notably, undocumented youth currently serving in the US military are not eligible for deferred removal action; and “significant misdemeanor offense” is left undefined, giving too much discretion to the Immigration Service Officer (ISO) adjudicating the deferred action application.
The promulgation of aforesaid strict eligibility requirements on deferred removal action for undocumented youth limits the prosecutorial discretion of the Department of Homeland Security in issuing Notice to Appear (NTA) before an Immigration Judge and pursuing removal proceedings of undocumented youth.
Although this policy change takes effect immediately, US Citizenship and Immigration Service (USCIS) and Immigration and Customs Enforcement (ICE) expect to implement it within sixty (60) days. It adversely affects family unity, and foments family separation.
Advocacy for comprehensive immigration reform
The more than fifteen (15) years of experience of this Author, handling deportation and removal cases in the Immigration Courts, reveals that Immigration Judges are loathe to deport or remove innocent children from the United States and return them to their home country they hardly know.
But Immigration Judges have to apply the law in removal proceedings, initiated with the issuance and filing of the Notice To Appear (NTA) with the Immigration Court.
Secretary of Labor Hilda L. Solis praised the Obama Administration: “The major change in our nation’s immigration policy will not only benefit young immigrant’s who know no other country that this as their own, but our economy and our nation as a whole.”
In the ultimate analysis, only Congress, acting under its legislative authority conferred by the United States Constitution, can confer the right to permanent lawful status to undocumented aliens, not the President.
The last amnesty in 1986 was passed during the Republican administration of President Ronald Reagan. Will another Republican President follow suit? Or will a Democratic President finally muster Congressional support for comprehensive immigration reform? Your guess is as good as mine!
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Roman P. Mosqueda has practiced criminal defense and Immigration law for over 20 years. He is a long-time member of the California Public Defenders Association. , and trained as a prosecutor with the Los Angeles City Attorney under the Trial Advocacy Program of the Los Angeles County Bar Association. He is also a volunteer, State-Bar trained arbitrator on attorney’s fees dispute resolution. Send comments or inquiries to [email protected] , or call (213) 252-9481 for free consultation appointment, or visit his website at www.mosquedalaw.com
