ON November 20, 2014, President Obama announced a series of executive actions that would benefit some undocumented aliens and improve some business-related aspects of the immigration process. Due to the scope of these executive actions, we shall first focus on actions that benefit undocumented aliens, which are expected to be the bulk of the beneficiaries of these actions.
Perhaps the most important of these executive initiatives is the Deferred Action for Parental Accountability (DAPA), which is a new program that would allow parents of US citizens (USC) or lawful permanent residents (LPR) to apply for deferred action and employment authorization. Deferred action refers to the exercise of administrative discretion in which immigration authorities temporarily defer the removal of an alien who is unlawfully present in the US.
An alien may apply for DAPA if he or she: (1) is an undocumented alien living in the US; (2) has continuous residence in the US since January 1, 2010; (3) is the parent of a USC or LPR born on or before November 20, 2014; and (4) is not an enforcement priority from removal pursuant to the Memorandum of DHS Secretary Jeh Johnson, dated November 20, 2014, entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants”. The first three requirements are straightforward and, to a certain extent, self-explanatory. However, for those with complicated immigration histories, the fourth requirement might pose a serious obstacle in obtaining relief. Let’s briefly examine this memorandum.
The November 20, 2014 DHS memorandum on detention and removal identifies three immigration enforcement priorities. Priority 1 refers to those who are considered threats to national or border security and public safety. Specifically, Priority 1 covers those: (1) suspected of terrorism, espionage or pose a danger to national security; (2) apprehended at the border or ports of entry while attempting to unlawfully enter the US; (3) convicted of an offense for which an element was the active participation in a criminal street gang; (4) convicted of felonies; and (5) convicted of aggravated felonies. These aliens are the highest priorities for removal.
Next in order are those under Priority 2, which refers to misdemeanor convicts and new immigration violators. Specifically, Priority 2 covers those: (1) convicted of three or more misdemeanors, other than minor traffic offenses; (2) apprehended in the US after unlawfully entering who cannot establish physical presence since January 1, 2014; (3) who have significantly abused visa or visa waiver programs; and (4) convicted of a “significant misdemeanor”, namely, an offense involving (a) domestic violence, (b) sexual abuse or exploitation, (c) burglary, (d) unlawful possession of firearm, (e) drug trafficking, (f) driving under the influence, or (g) an offense where the sentence was 90 days or more in custody. Finally, Priority 3 covers those who have been issued a final order of removal on or after January 1, 2014.
A good feature of the November 20, 2014 DHS memorandum on detention and removal is that it sets standards for exceptions under each priority. Thus, the removal of Priority 1 aliens must be prioritized unless there are “compelling and exceptional factors” that indicate the alien is not a threat to national or border security or public safety. The meaning of “compelling and exceptional factors” could be defined by subsequent memorandum or drawn from existing practices. Thus, although Priority 1 aliens have almost no hope of avoiding removal, there is a narrow opportunity to argue and make a case against removal. There is a similar provision for Priority 2 aliens but the standards are lower. They should be removed unless there are factors indicating that they are not a threat to national or border security or public safety. The standards for Priority 3 aliens are even lower. They must show that they are not a “threat to the integrity of the immigration system”.
Another initiative in the President’s executive action covers an expansion of the I-601A provisional waiver program. Currently, only spouses and children under 21 of USCs may apply for an I-601A to waive their inadmissibility for unlawful presence. The executive action allows: (1) sons and daughters (i.e. children 21 and over) of USCs; and (2) spouses, sons and daughters of LPRs to apply for provisional waivers. This initiative also plans to issue new guidelines to clarify the meaning of “extreme hardship”, which is one of the requirements for a waiver.
Finally, there is also an initiative that expands the Deferred Action for Childhood Arrivals (DACA) program by: (1) removing the upper age restriction and allowing individuals born prior to June 15, 1981 to apply if they meet other requirements; (2) requiring continuous residence since January 1, 2010 instead of the prior requirement of June 15, 2007; and (3) extending the deferred action period and work authorization from 2 to 3 years.
While potential beneficiaries must be excited by these initiatives, it should be emphasized that these programs need further regulations or implementing guidelines and no applications would be accepted until further notice from USCIS.
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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.
