What is Deferred Action, and is it the DREAM many were hoping for?

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What is Deferred Action, and is it the DREAM many were hoping for?

On June 15, 2012, the U.S. government announced a new program to provide some relief for immigrants who came to the United States as children, and who are currently without documentation. Although many are calling it the “DREAM law,” it is not actually the DREAM Act that Congress has been fighting over for years, nor is it really even a law at all. Rather, the new program is an executive order from the Obama Administration, and its official name is Deferred Action for Childhood Arrivals (D.A.C.A.).

Immigrants who qualify for D.A.C.A. will not necessarily receive any kind of status, such as permanent residency or citizenship, but should find at least some relief knowing that they will not be deported during a two-year period, which can be renewed at the end of those two years. Those individuals who qualify may also be eligible to apply for a work permit, as well as a driver’s license in certain states.

To qualify, individuals must:

1. be under the age of 31 as of June 15, 2012
2. be 15 years old or older at the time of filing the request (this requirement has some exceptions if the individual is in deportation proceedings)
3. have come to the U.S. before reaching 16 years old
4. have continuous physical presence in the U.S. for five years preceding June 15, 2012
5. have either graduated from high school, obtained a GED, or are in school currently, or be a U.S. military veteran with an honorable discharge
6. not have any felony convictions, significant misdemeanor convictions, or have three or more total misdemeanor convictions

The USCIS (United States Citizens and Immigration Services) will begin taking D.A.C.A. cases on August 15, 2012. The filing forms will not be available until that day. After submission of the forms and supporting evidence, individuals will undergo fingerprinting and a background check. This should not concern immigrants, however, as ICE has stated that it has no intention of using information from the applicant’s forms, fingerprints, or background check to initiate deportation against any immigrants involved in the process.

Our firm has already been receiving many calls from individuals seeking to file under D.A.C.A. We are here to help you determine if you qualify for D.A.C.A., and to assist you with the complex immigration procedure. Please call us today at (719) 260-7900, or (719) 433-7571 for Spanish speakers.

Josh Deere
Hanes & Bartels LLC
102 S. Tejon St., Suite 800
Colorado Springs, CO 80903
(719) 260-7900
Español: (719) 433-7571
http://www.colorado-immigration-law.com

Prosecutorial Discretion: Is There A New Immigration Law?

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There has been a lot of talk recently of a “new law” affecting U.S. immigration policy. The talk is the result of a letter dated August 18, 2011, sent from Homeland Security Secretary Janet Napolitano to U.S. Senate Majority Leader Harry Reid declaring that changes are coming to the government’s approach to reviewing deportation cases. This “new law” has sparked a media frenzy and a political firestorm. But is the government’s new policy a “new law”, or just more political rhetoric? More importantly, how can it be used to the benefit of those seeking immigration relief?

What the “new law” is not

First, the “new law” is not really a new law at all. Rather, the policy referenced in the letter from Secretary Napolitano reinforces the contents of two prior memoranda from Immigration and Customs Enforcement (ICE) Director John Morton. In those memoranda, from March 2010 and June 2011, Director Morton discussed the need for ICE personnel to exercise prosecutorial discretion when reviewing and prosecuting removal cases.

Morton’s memos encouraged ICE to focus its energy and resources on prosecuting high-priority cases, such as those involving convicted criminals and individuals who pose a threat to public safety. The Morton memos also discouraged ICE from expending resources on low-priority cases, such as individuals who have lived in the United States since their youth, and who have a clean criminal record.

Morton’s June 2011 memo provided 19 factors which should be considered by ICE personnel when deciding whether to prosecute a removal case. Those factors include the individual’s length of presence in the United States, the circumstances surrounding entry into the U.S., education, criminal history, military service, whether the person has a U.S. citizen or permanent resident spouse, or whether the person is the caretaker for another who is a minor, disabled, or ill.

The policy addressed in the Morton memos and the Napolitano letter also does not create new immigration categories or new grounds for admission. The policy only applies to immigrants who are facing removal proceedings.

What the “new law” is

In other words, rather than announcing a “new law”, the Morton memos and the Napolitano letter only emphasize the government’s priorities in dealing with existing removal cases, and those that will be filed in the future. However, if implemented effectively, the policy discussed in Secretary Napolitano’s letter could provide much-needed hope to those battling the deportation process.

While the Napolitano letter did not declare new law, it announced the government’s plans to implement the policies stated in the Morton memos. Specifically, the letter stated that the Department of Homeland Security (DHS) and the Department of Justice (DOJ) are jointly forming a group to conduct a case-by-case review of all pending removal cases to ensure that ICE is focusing its efforts on prosecuting only the highest priority cases, and will conduct a similar review of all new cases.

Once ICE has reviewed a case and designates it as low priority, the case will not necessarily be dismissed. Rather, the case will be “set aside”, and the individual will be eligible to apply for a work permit. It is unclear at this point, however, what long-term immigration benefits will be available to those individuals.

With approximately 300,000 removal cases pending nationwide, it remains to be seen how, when, and to what extent the new policies will be implemented. While the new policies do not yet appear to have had any significant impact on the procedures in Denver’s immigration courts, the rumor is that courts in other states have drastically changed their approach to removal cases. The scheme is certainly a work in progress, but may be a sign of hope in the struggle for immigration reform.

by Josh Deere
Immigration Attorney
Hanes Hrbacek & Bartels LLC
http://www.hhbcolorado.com
http://www.colorado-immigration-law.com