In a memorandum written to the directors of the U.S. Customs and Border Protection Agency (CBP), Citizenship and Immigration Services (USCIS), and Immigration and Customs Enforcement Agency (ICE), the Obama Administration responded to years of pressure from immigration rights activists by authorizing the use of prosecutorial discretion by these agencies. The order effectively stops the deportation of certain young immigrants in this country, better known as DREAMers.
DREAMers get their name from the DREAM Act, or the Development, Relief, and Education for Alien Minors Act, which was first introduced as bipartisan legislation in 2001 by Senators Dick Durban (D-Ill.) and Orrin Hatch (R-Utah). Initially, it garnered significant support as a novel way to alleviate part of the illegal immigration problem. The central tenant of the act focused on young immigrants of good moral character who were illegally brought into the country by their parents. The act was to provide them with legal residency status under certain conditions, including the completion of at least two years of college or military service, and at least five years of residency in the U.S. prior to the enactment of the legislation. The DREAM Act has since seen several different revisions, but has only been met with delay due to congressional inaction.
Support for the DREAM Act seemed to be declining with the passage of time. However, in recent months, new legislation and proposals similar to the DREAM Act have begun circulating in Congress. In January, Rep. David Rivera (R-Fla.) introduced the ARMS Act, which would require military service as a condition to obtaining permanent resident status. Rep. Rivera also introduced the STARS Act just last month, an act that would allow undocumented students to receive permanent residency status if they were under the age of 19 at the time of application and subsequently completed a four-year degree. Meanwhile, Senator Marco Rubio (R-Fla.) has made a proposal to provide non-immigrant visas to young illegal immigrants, though he has yet to specify any details of the legislation. Sen. Rubio has, however, expressed his intent to narrowly tailor the legislation to address Republican immigration concerns with the DREAM act.
But talks of new legislation similar to the DREAM act came to a standstill after the announcement by the Obama Administration this past Friday. The memo written by the Secretary of Homeland Security, Janet Napolitano, set forth the criteria by which the Department of Homeland Security would exercise its prosecutorial discretion in enforcing immigration laws against those young people who were illegally brought into the U.S. but knew no other country as their home. The outlined criteria mirror that of the DREAM Act to a certain degree. Specifically, the memo states that if an individual: (1) came to the United States under the age of 16; (2) has continuously resided in the U.S. for at least five years preceding the date of the memo and is present in the U.S. on the date of the memo (June 15, 2012); (3) is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or the Armed Forces of the U.S.; (4) has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses as threat to national security or public safety; and (5) is not above the age of thirty; he/she should be subject to prosecutorial discretion and should be prevented from being placed into removal proceeding and being removed from the United States.
“This grant of deferred action is not immunity,” Napolitano said in an interview. “It is not amnesty. It is an exercise of discretion so that these young people are not in the removal system. It will help us to continue to streamline immigration enforcement and ensure that resources are not spent pursuing the removal of low-priority cases involving productive young people.”
The Obama Administration has stated that the policy change is expected to affect approximately 800,000 immigrants, though a Pew Hispanic Center (a project of the Pew Research Center) study has calculated that up to 1.4 million children and young adults could benefit from the change. This number represents an estimated 12% of the unauthorized immigrant population. 70% of the potential 1.4 million beneficiaries are from Mexico.
Determinations will be made on a case-by-case basis, suggesting that relief cannot be guaranteed to an illegal immigrant simply because they fit the initial five criteria. Further, the President emphasized the temporary nature of the order and called for Congressional action in creating permanent legislation on this issue. As it stands, the order would become ineffective in two years unless renewed by the next president. Moreover, the order does not actually confer any kind of substantive right, immigration status, or pathway to citizenship. But the Department of Homeland Security has stated that individuals who are granted the deferred action may send applications to the USCIS to determine whether they qualify for work authorization.
While those granted deferred action in accordance with the new policy are not necessarily on a path to U.S. permanent residency, let alone U.S. citizenship, they at least now are keeping their dream alive.
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