New Policy Promises to Help Young Undocumented Aliens

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano, issued instructions to US Customs and Border Patrol (“CBP”), US Citizenship and Immigration Services (“USCIS”) and US Immigration and Customs Enforcement (“ICE”), concerning the exercise of prosecutorial discretion and the granting of deferred action in case involving undocumented aliens who came to the United States before the age of sixteen. Through these instructions, Napolitano aimed to implement a new policy of focusing enforcement resources on high priority cases, and not on lower priority cases of law abiding young people who have been brought to the United States. The text of Napolitano's memorandum can be found here. To qualify for the exercise of prosecutorial discretion under the new policy, an alien has to meet the following criteria: (1) the alien came to the United States before the age of sixteen; (2) the alien continuously resided in the United States for five years before June 16, 2012; (3) the alien is currently in school, has earned a high school diploma, has earned a general equivalency diploma, or was honorably discharged from the Coast Guard or Armed Forces of the United States; (4) the alien has not been convicted of a felony, a significant misdemeanor offense or multiple misdemeanor offenses, or is not a threat to national security or public safety, and (5) is thirty years of age or less. If CBP, USCIS or ICE encounter such a person, Napolitano instructed that the agencies should exercise their discretion, on a case by case basis, not to place that person in removal proceedings. Indeed, the agencies were instructed to develop a process for granting deferred action to such persons who are at least fifteen years old for two years. Deferred action occurs when the immigration authorities choose not to place a person in removal proceedings, despite the violation of immigration law. A person who has been granted deferred action may apply for work authorization in the United States. After the two years, the deferred action would be subject to renewal. If the person is already in removal proceedings, Napolitano instructed that ICE should determine whether to exercise its prosecutorial discretion, on a case by case basis, to terminate the removal proceedings, and grant the person deferred action for two years, subject to renewal. Pursuant to the Immigration and Nationality Act, US immigration authorities already possess the discretion to decide whether to place a person in violation of US immigration laws in removal proceedings, or whether to grant deferred action to such a person. Last year, the President instructed ICE to concentrate its resources on high priority cases, which would include violent criminals and threats to US national security and public safety. President Obama instructed ICE to consider, on a case by case basis, whether ICE should exercise its prosecutorial discretion in low priority cases not to continue with removal proceedings. Napolitano’s instructions represented more specific guidelines in how immigration authorities should exercise its discretion under the law. This specific policy is aimed to help a small class of undocumented individuals. Namely, it is meant to assist those who were brought to this country before the age of sixteen, and thus did not possess the intent to violate immigration law themselves. While this announcement of official Homeland Security policy is focused on a narrow class of people, it does not mean that some form of relief will not be made available to other undocumented aliens. Immigration authorities still possess the discretion under the law not to pursue removal proceedings for people who are technically in violation of immigration law. Indeed, immigration authorities have the discretion to grant deferred action and consider whether to grant a person otherwise in technical violation of immigration law work authorization. ICE has already been instructed to concentrate its resources on high priority cases. Those cases include aliens who: (1) have engaged in, or are suspected to have engaged in, terrorism and/or espionage; (2) have been convicted of violent crimes, or are repeat offenders; (3) have participated in organized criminal gangs; (4) have outstanding criminal warrants; and/or (5) otherwise pose a serious risk to the public safety. An undocumented alien who does not fall into one of these categories may still petition immigration authorities to exercise prosecutorial discretion, and potentially granted deferred action. The new policy does not create a path to permanent residency or citizenship. Indeed, it would only grant a weak form of relief, and that is a promise not to enforce US immigration law. Deferred action can be revoked at any time, for any reason. The instructions created no constitutional right to the exercise of prosecutorial discretion or deferred action. A person granted deferred action can still be removed (or deported) from the United States should the Administration change its policy, or a new Administration disagree with this policy. The new policy does not grant amnesty. That is, it does not forgive the violation of immigration law. It only gives an undocumented alien a promise that for a limited period of time the US Government will not enforce immigration law requirements on an individual. If you believe that you may meet the criteria set forth in Napolitano’s instructions, you should consult with a knowledgeable immigration lawyer to discuss your options.