Friday, September 7, 2012

Deferred Action: What About the Parents?

The President's new program promises deferred action and possibly work authorization for certain young people who are in the United States without legal immigration status.  But, the program raises a question.  What about the parents of the young people?

The deferred action program, also known as deferred action for Dreamers, applies to people brought into this country before age 16, who are under 31, and who have been in the United States for five years as of June 15, 2012.  Certainly, among those who qualify will be minor children.  If that is the case, can the Government ignore their parents?

To answer this, it is necessary too understand exactly what this program is.  The deferred action program is not law.  The DREAM Act has not been passed.  The President has no power to grant legal status to the young people who qualify for this program.  This is an exercise of discretion.

One way to think of it is to think of the police officer who observes illegal behavior on his beat.  The police have the authority to arrest anyone they see who commits a crime.  But, quite frankly, if the police were to do that, we would quickly run out of jail space.  Well-trained police also know that sometimes, people break the law for stupid reasons, and they may not be dangerous criminals.  So, the police exercise discretion.  They do not always arrest every single law breaker they come across.

The same concept applies to the immigration system.  Even though there are millions of people who are in violation of immigration law, the Government is not under a duty to enforce the law with respect to everyone.  Quite frankly, if ever undocumented alien were detained and placed in removal/deportation proceedings, we would quickly run of resources.  There are simply not enough immigration judges, ICE attorneys or detention facilities to enforce the immigration laws on every undocumented alien.

So, the Government has to choose against whom it will enforce the law.  That is, it exercises discretion.  Some cases are easy.  Violent criminals, drug dealers and gang bangers are all top priorities for ICE, and well they should be.  But, what about those people who came here simply to try for a better life, and to send money home to their families.  Yes, technically they are breaking the law.  But, if these are peaceful people, who do not break criminal laws, then ICE considers them low priorities.

There are also humanitarian reasons why the Government may not enforce the law.  Think of the mother of a new born baby.  If the baby was born in the United States, the baby is a U.S. citizen.  In my experience, I have found ICE reluctant to institute removal proceedings against the mothers of newborn U.S. citizens.

These concepts all tie back to the current deferred action program.  The President has established a set of criteria to identify people to whom he wants to exercise his discretion not to deport.  But, this does not mean that this is the only set of people who will ever qualify for deferred action.  The Government has the authority to grant deferred action to any person who is in the country without a valid legal status.  Just because you don't meet all of the criteria in this particular program, does not mean that there is no hope.

And that is where the humanitarian reasons come to play.  Let's say you have a child who came to the United States at age three.  Now the child is nine.  That child is enrolled in school, and presently in the United States.  That child can qualify for deferred action.  But, how is that child to be supported?  Who is going to pay for the child's food, housing and medical bills?  The most obvious answer is the child's parents.  It is for this reason, that I believe that the undocumented parents of such children may still qualify for deferred action, but in their own right and not under this particular program.  Quite frankly, if the child is going to apply, the Government will already have the address of the family on file.  Unless we are talking about criminal issues or security problems, I don't see much more of a risk for the parents to request deferred action too.

But how do you apply?  The old guidelines for applying for deferred action held that you applied to the District Director.  And perhaps that is still the right answer.  However, I have made one application for a person ho did not meet all of the qualifications, arguing that the general policy should still protect my client.  I made the application before the new policy procedures were announced.  I got a phone call from USCIS on August 16, telling me that now that the new procedures have been issued, that I should re-apply, but this time using those procedures.  Using that as my guide, I would make the application for the parents through the same procedures, but make sure it is clear that we are not applying under the President's specific guideline.  Rather, we are applying based on the President's inherent authority to grant deferred action to any undocumented alien.  Check in later, and I'll let you know how it works out.

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