Monday, September 3, 2012

Should I Apply for Deferred Action?

Sure, the President has announced a program to grant deferred action to young people who were brought to the United States before they were 16, are under 30, and have been in the United States for 5 years.  Yes, you can receive work authorization if approved.  But, should you apply?

The big concern is that everyone who affirmatively applies for deferred action will be calling attention to themselves from the Government.  Deferred action is a discretionary program.  That means that the Government is not required to grant it to anyone.  So, if you are denied, there is a chance that the Government will come after you and place you in removal/deportation proceedings.  Is it worth the risk?

First, if you are already in removal/deportation proceedings, or if you have been ordered removed or granted deferred action, then you have nothing to lose.  The worst possible scenario has already happened to you.  You might as well give it a shot and apply.  Just be careful of your time frames, so your time for voluntary departure does not run our before USCIS makes a decision on your case.

There are people who should absolutely not apply.  Do you have any kind of criminal record?  Then do not apply.  You will find that USCIS will deny your application.  Then, on some random morning within a week of the denial, at about 3:30 am, you will find ICE officers, heavily armed, banging on your door to take you into custody.

Do you have an outstanding order of removal or deportation?  Perhaps you crossed the Rio Grande years ago, were placed in proceedings, and released on your own recognizance.  Then, you never made it back to court.  If you have an old order of removal or deportation, then there is a chance that your application will be denied, and like the person with the criminal record, ICE will come banging on your door at 3:30 am to take you in and send you back to your home country.

So, who should apply?  As long as you remember that you are taking a risk, then you might find it beneficial to apply for deferred action.  If it is very important to you that you receive work authorization, then applying for deferred action may make sense.

Also, there is a chance that Congress will eventually pass the DREAM Act, or some other type of immigration reform.  Maybe, just maybe, Congress will give those who applied for deferred action for young people a better place in line if they pass reform.  Of course, this is pure speculation on my part.  But, it is based on some history.  When amnesty last passed, people who had a place in line were given priority over new applicants.  It makes sense to some degree.  When you apply for deferred action, the FBI will do a background check.  If the person passes the background check, then the Government will know already that the person is not a security risk.

But, everyone who applies for deferred action should keep in mind that the program is only as good as the promises of the Administration in power.  If Barrack Obama loses in November, then it is almost a certain thing that the Romney Administration will not renew the program after two years.  In fact, there is no promise that a new administration won't use the information gathered through the deferred action program to round people up and immediately place them in removal proceedings.  Realistically, the chances of that are probably low, as the strain on the Government's resources will be phenomenal.

In sum, if you apply for deferred action, and you are not currently in removal/deportation proceedings, remember that you are taking a risk and that there are no guarantees.

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