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DREAMer Deferred Action Questions and Concerns

by Alan Lee, Esq.

The Obama Administration's surprise announcement yesterday on June 15, 2012, of a deferred action program for young people who would qualify under the more liberal DREAM Act legislation brought euphoria to those affected and their relatives, and consternation to the anti-immigration lobby, including many Republicans. More details and reactions will be forthcoming in the next weeks, but the following are some of the areas of concern at this time.

  1. Republican Party reaction

    Thus far, it has been somewhat muted, but grumblings are in the air with Representative Steve King (R-IA) threatening to bring suit and Senator Charles Grassley (R-IA) stating that the President's action is an affront to the process of representative government by circumventing Congress and with a directive he may not have the authority to execute. Mitt Romney, the presumptive GOP nominee for President, said that he thought that the President's action made it more difficult to reach a long-term solution for the status of young people who came here through no fault of their own since an executive order was just a short-term solution that could be reversed by subsequent Presidents, and then did not take questions about whether he would reverse the executive order if elected President. Mr. Romney had previously vowed to veto the DREAM Act but this year appeared to be softening that approach having earlier said in a debate with Newt Gingrich that he could support a version of the DREAM Act giving legal residence to those coming to the U.S. at a young age if they served in the military. His current view appears more in line with a yet-to-be-revealed version to be offered by Senator Marco Rubio (R-FL), who has been mentioned as a potential running mate. Mr. Romney said yesterday that "I happen to agree with Marco Rubio as he would consider this issue."

    Senator Rubio commented that the President's announcement would be welcome news "for many of these kids desperate for an answer," but that it was a short-term answer to a long-term problem, and that by once again ignoring the Constitution in going around Congress, the short-term policy would make it harder to find a balanced and responsible long-term one. The senator's plan has been rumored to grant legal status but not a special pathway to citizenship to illegal immigrants who came to the country at a young age and served in the military or attend college. Also to be considered is whether the executive order will give renewed energy to the Republican backed Hinder the Administration's Legalization Temptation (HALT) Act (H.R. 2497, S. 1380), which calls for suspension of executive authority to issue such orders. The best guess in this corner is that the Republicans will not go all-out for HALT legislative passage due to the sympathetic nature of the people covered under this order and the unlikelihood of obtaining a two-thirds majority to overcome the President's veto.

  2. The requirement to be currently enrolled in high school, graduated or have a GED, or have enlisted in the military.

    The question here is when does a young person have to fulfill this condition - June 15, 2012, or at the time of applying for deferred action? Further guidance should be given, and the better position would be completion of the condition as of the time of application. Other conditions specifically state June 15, 2012, as the date on which an applicant must have been physically present and already accrued five years continuous residence. The lack of a specific date on this condition should be construed to mean that June 15, 2012, is not relevant to the fulfillment of the requirement. Many young people have been discouraged by their prospects over the years and dropped out of school. They deserve a second chance if they fulfill all other conditions of the executive order. With additional time, they would likely be able to re-enroll in high school, take the GED, or attempt to enlist in the military.

  3. The requirement of not having been convicted of one serious crime or multiple minor crimes.

    In DHS's Frequently Asked Questions (FAQ's) accompanying President Obama's announcement, the agency said that individuals who have been convicted of a felony, significant misdemeanor, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct are not eligible to be considered for deferred action. In answer to what offenses qualify as a "significant misdemeanor," DHS included federal, state, or local criminal offenses even if there was no imprisonment that involved among others threats or assault, driving under the influence of alcohol or drugs, or unlawful possession of drugs. In promoting the deferred action program in his speech, President Obama put the DREAMERS on a pedestal with words like "Imagine you've done everything right your entire life, studied hard, worked hard, maybe even graduated at the top of your class" and "These are young people who study in our schools, they play in our neighborhoods, they're friends with our kids, they pledge allegiance to our flag." He clearly needs to make the program popular to the American people, but by the same token, everyone must realize that many of the DREMERS are young, being molded still, and make mistakes. Kids threaten their friends and fight with them, get behind the wheel of their or their parent's cars after they have been drinking, and experiment with recreational drugs at times. There should be some compassion to the young people who only have one incident on the record. Given the increasing downward spiral of animosity between the two parties, there may never be a permanent DREAM Act enacted, and so hopefully DHS will rework its FAQs to afford relief to the young who only have one misdemeanor in the class described above. Deferred action should not be given only to the perfect children.

  4. DHS should give guidance to officers on what to do in instances of children entering with false documentation.

    As part of placing the DREAMERS on a pedestal, President Obama said that "They were brought to this country by their parents, sometimes even as infants, and often have no idea that they're undocumented until they apply for a job or driver's license or a college scholarship." Mr. Romney took a similar tack in speaking of "young people who came here through no fault of their own." Yet there may be a significant number of young people who entered the country close to the age of 16 with false documentation with or without their parents. The relief of deferred action is one described by DHS Secretary Janet Napolitano in her June 15, 2012, memorandum as being in the exercise of prosecutorial discretion. We urge DHS to adopt the position that, as the children were under the age of 16 on the date of entry, they did not act in a knowing, intentional, deliberate and/or voluntary manner. Children under the age of 16 are generally not recognized as having legal competence, and their action here should not be a detrimental factor in the exercise of discretion. We further note that fraudulent actions other than for criminal acts are not covered in the list of exclusions for consideration of deferred action.

The above four points will undoubtedly be followed by many other observations, questions and issues for the Administration/DHS to resolve in the 60 days prior to its anticipated date for accepting requests for deferred action. This is an exciting time in which the author hopes that much feedback is given to DHS so that relief can be granted to the largest class of possible beneficiaries.

About The Author

Alan Lee, Esq is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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