Sunday, July 15, 2012


In the midst of the 2012 Presidential campaign, Secretary Napolitano issued a policy directive that grants deferred action to young people who are illegally present in the US and who meet certain qualifications as to education or equivalent, time in the U.S., good conduct and age.

Deferred action means a discretionary administrative hold on deportation, though the deferred action in this policy announcement was granted in two year increments, renewable. Work permits would also be available under terms applicable to other deferred actions. Deferred action may also stop the accrual of unlawful presence, which might have immigration related consequences for some people who fell out of status relatively recently.

Not bad for DREAMERs, but not a panacea either. There are still three things to worry about, since, like the Chinese logogram says, every opportunity presents danger. First, DREAMERs should beware of those who would sell them the Brooklyn bridge (DREAMERs as culturally American, should understand the expression). As of this blog post, no rules have been published stating how to apply. The forms don't even exist yet. No one has announced the fees, if any. The policy remains an idea to be implemented practically, with bureaucrats running around in circles trying to figure out the details and get it all to work within the Secretary's deadline, which is August 15, 2012. Anyone who tells you there is someone who can get a DREAMER situated right away who is not in immigration detention already is talking nonsense and is not worthy of belief.

Second, because legally the action was in the form of a policy directive from an executive branch of the Government it was easily promulgated, without Congressional action.  But the same ease also applies to repeal. If Mr. Obama changed his mind or was not re-elected, the policy could be renounced by the Secretary, either this one or her successor. People who had come forward and applied could be arrested, detained and deported on the basis of the information they had provided in the application process.

The possibility is not so far-fetched. For a time the Ninth Circuit took the position that the Clinton-era amnesty applied to persons who not only had entered illegally before April 2001 and met the legal requirements but also to those who had left the U.S. and returned illegally again. The Board of Immigration Appeals disagreed but DHS was required by law to respect the Ninth Circuit ruling. A number of undocumented people, reassured by the Court ruling, came forward and applied under grandfathered provisions of the Clinton amnesty law, many through immigration lawyers. Then the Ninth Circuit changed its mind, and disqualified the applications of the illegal returnees. Many affected persons were unaware of the change of decision. DHS called them in for "interviews", arrested them, and took them straight to Mexico. Do not pass go, do not collect $200.

Yet the affected people had filed petitions and paid money to the Government for the benefit based upon a court decision that seemed authoritative. Notwithstanding, they were expelled when someone in power changed their minds. It could happen again to DREAMERs, particularly if the Republicans regain control of the White House in 2013.

Finally, there is a nagging disconnect between the policy hold on deportation of young people and traditional criminal immigration law, which is the subject matter of this blog. Crimes that disqualify people for immigration benefits constitute a body of technical, complex, but (arguably) understandable law. The policy directive for deferred departure of young people will not follow those rules, but rather will apply a mixture of familiar and other different ones. Individuals are not eligible for deferred action if they have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety. A significant misdemeanor offense may not require jail time, and includes one prior DUI as a grounds for disqualification, which is not usually a grounds for immigration disqualification. Threats to national security or public safety likely include gang affiliation. What about juvenile offenses, which usually are not referenced either and about which the policy announcement is silent? Will they now be considered as a disqualification for deferred departure of young people? This uncertainty could pose a real threat to a number of  essentially civic-minded young people who went through an admittedly high-spirited phase once upon a time and got into trouble (likely silly) and then woke up and went straight.

As a discretionary action by administrative officials, a grant of deferred action is not appealable, not even to the courts.

DREAMERs should welcome the Secretary's action, but exercise extreme caution, lest they waken from the dream unto a nightmare.

Click the link to read more about issues affecting immigration for DREAMERs.

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