Bustos Law Firm

Archive for July, 2012|Monthly archive page

President Obama Offers ‘Deferred Action’ To Young Undocumented Immigrants

In Immigration on July 19, 2012 at 8:27 AM


On June 15th, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that effective immediately, young people brought to the United States through no fault of their own as young children will be considered for ’deferred action’ from removal proceedings. This will allow beneficiaries thereof to affirmatively apply for the chance to work, study, and live in the U.S. without fear of deportation…provided they meet certain key criteria.

The Obama administration, which has already deported more undocumented immigrants than any administration in U.S. history, has attempted to focus its deportation (removal) efforts on those who pose a danger to national security, are a risk to public safety, or who have serious or multiple criminal convictions. The recently announced deferred action program is an extension of the administration’s policy of focusing on removing undocumented immigrants convicted of crimes.

“Over the past three years, the administration has undertaken an unprecedented effort to transform our nation’s immigration enforcement system into one that focuses on public safety, border security, and on the integrity of the immigration system,” Napolitano said.

Since the new policy was announced last month, our office has received numerous phone calls from young people wondering if they are eligible for the program. And, while we do know the basic eligibility criteria of the program, like everyone else, we are still awaiting further details on the program from the United States Citizenship and Immigration Services (USCIS).  Secretary Napolitano has given USCIS until August 14, 2012, to come up with the specific details for administering the program.

What is Deferred Action? Is it a Form of Amnesty?

First of all, it’s important to note that deferred action does not confer lawful immigration status upon an individual.

Secretary Napolitano was quick to point out that deferred action, which will initially be for a period of two years, will “not provide permanent lawful status or start them on a pathway to citizenship,” and “is well within the framework of our existing laws.”

“This grant of deferred action is not immunity. It is not amnesty,” she said. “It is an exercise of discretion so that these young people are not entering the legal system. It will help us continue to streamline immigration enforcement.”

What deferred action does, however, is defer deportation (removal) of qualified individuals from the United States via an act of prosecutorial discretion. In other words, it can be bestowed only at the discretion of the federal government…there is no right to a grant of deferred action under the law.

Who Is Eligible for Deferred Action?

As mentioned above, the specific details of the program have yet to be published by USCIS. However, we do know the minimal requirements that any potential beneficiary of this program must meet. They are as follows:

  • Be between the ages of 15-30 years old;
  • Have entered the United States before age 16;
  • Been present in the U.S. for at least 5 years as of June 15, 2012;
  • Maintained continuous residence in the United States since that time;
  • Have not been convicted of either one serious crime, or multiple minor crimes;
  • Be currently enrolled in high school, a high school graduate, have a GED, or a veteran of the U.S. Military or Coast Guard.

Am I Still Eligible for Deferred Action if I Have a Criminal Record?

A laundry list of various crimes will disqualify potential beneficiaries from benefits under the deferred action program, including, but not limited to:

  •  A felony conviction;
  • A single DUI;
  • Three or more unrelated misdemeanor convictions;
  • A single “significant misdemeanor” conviction. This includes crimes involving violence such as threats, assault and domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; and unlawful possession of drugs;
  • Simple traffic offenses will not disqualify an applicant.

What Benefits Will I Be Entitled to Under the Deferred Action Program?

An individual who has been granted deferred action is eligible to receive employment authorization in two year increments for the period of deferred action. This employment authorization can be renewed indefinitely.  Also, in Texas, and in many other states, the Employment Authorization Document (EAD) should also allow a deferred action beneficiary to obtain a driver’s license.

Undocumented immigrants who are granted deferred action will also not accrue unlawful presence in the U.S. during the period that the deferred action is in effect. However, it will not absolve these individuals of any previous or subsequent periods of unlawful presence.

What Fees Are Required by USCIS to Apply for Deferred Action?  

As of yet, there has been no announcement from USCIS regarding fees for the deferred action program.

Is Deferred Action Available if I Am Already in Removal Proceedings?

The deferred action policy is available to persons who are in, or have been in removal proceedings.

Specifically, three categories of individuals are affected:

  • Persons currently in removal proceedings may have those proceedings terminated;
  • Persons with a final removal order can also apply for deferred action with USCIS as soon as the agency begins accepting applications;
  • Persons whose departure period has not yet expired can have their cases re-opened for purposes of termination and a grant of deferred action.

If you are in one of these three categories, you should take immediate action to make sure that you are not removed from the U.S.

Is There Anything I Can Do Now to Get Ready for the Policy Change?

We are recommending that individuals who think they may be eligible for the deferred action program do the following:

  • Review their immigration history to verify that they are indeed eligible for benefits under the new program;
  • Review their family’s immigration history to see who else in their family might be eligible under the new program;
  • Correct any deficiencies, if possible, in their pending application with the assistance of a qualified immigration attorney; and
  • Ascertain what forms of documentation are likely to be required for submission to USCIS.

Lastly, you need to be aware that some unauthorized practitioners of immigration law, as well as some unscrupulous immigration attorneys, may wrongly claim that they can currently file an affirmative deferred action application on your behalf. Be assured they cannot. However, by becoming better acquainted with the details of what is currently known about the deferred action program, as well as by following some of the preparatory steps suggested herein, applicants can give themselves a head-start on the application process that will allow them to affirmatively file for deferred action as soon as possible…..once the specific details of the program are published by USCIS.