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Should DREAMers Apply for Deferred Action?

During the last month since President Obama announced the new Deferred Action program for Certain Young People, I have mulled over the commentary by media, politicians, and immigrant advocates. There is plenty of information out there about the eligibility requirements or how they should be interpreted, but little discussion about whether people should apply in the first place. is this program all it’s hyped up to be and should people apply if qualified? After all, Deferred Action is not a visa, a green card, citizenship, or an amnesty. It is only a temporary administrative reprieve from removal or deportation.

President Obama’s June 15, 2012 program applies to two primary groups of young people: 1) those already in removal proceedings and 2) those who have never been in removal proceedings or who already have final orders of removal. The basic requirements are mentioned in my earlier post, President Obama Announces Deferred Action to Would-Be DREAMers. Deferred Action is already available for the first group currently in removal proceedings as well as to anyone else in proceedings whose compelling humanitarian situation justifies the grant of Deferred Action. Deferred Action is one tool in the government’s tool box of discretionary actions available. DHS is already contacting potentially eligible DREAM Deferred Action applicants, including those whose cases were previously administratively closed or their cases were rejected for administrative closure as part of the general prosecutorial discretion memos announced last summer. Individuals under 31 years old who may be eligible for Deferred Action may make motions now before ICE and the courts to determine if they can apply for Deferred Action. This article, however, is about the second group who will be able to step forward and apply for Deferred Action in mid-August. There is no way to file for Deferred Action right now. Eventually, DREAMers not in proceedings will apply directly to USCIS. The details of this program are being worked out and have not yet been announced. In the meantime, besides determining basic eligibility, now is the time for undocumented young people who have had no prior encounters with immigration authorities or removal proceedings to think about whether they should apply for Deferred Action at all, even if they qualify. Whether a person should step forward and announce their undocumented status is a very significant question, despite the opportunity for a temporary benefit. I believe this question requires thoughtful and well-informed consideration.

Looking at the limited commentary by immigration attorneys and immigrant rights advocates on whether potential DREAMers should step forward at all, I came up with these four broad and varying points of view:

1) Political Pessimists View Initially, several organizations and practitioners suggested that people should wait to apply until after the election to see how the Presidency and Congress shape up. While it is hard to predict what the next President or Congress will do, there is a chance that a more divided or conservative Congress would attempt to legislate this program away. GOP Presidential candidate, Mitt Romney, has not directly said he would do away with the program. He has stated that he prefers that Congress pass a DREAM Act (forgetting that Congress tried but failed to pass a DREAM Act in 2010-11). If elected to the Presidency, Mr. Romney will have the same Executive Powers that President Obama has to either disband, change or continue what President Obama started. However, we all know examples of how candidates can say one thing on the campaign trail and do something else once elected. Only time will tell. At this point in time, no one can predict what will happen.

2) Political Optimists View Other organizations and practitioners suggest that the more people who step forward to apply early on before the election, the less likely the next President or Congress will be willing to take status away from a largely sympathetic population, i.e., young people who were brought to the US by their parents with no control over their parents’ decisions who are going to school or starting careers. Most of these young people act or feel American but for the paperwork to prove it. The more sympathetic cases that are publicized, or the more DREAMers who “out” themselves publicly, the more likely legislators will be reluctant to take such a benefit away. Polls show that a majority of Americans favor granting some status to this population. Deferred Action will relieve some stress, at least temporarily, for a potentially large number of people, enabling them to work and/or move on with their lives.

3) Wait and See the Implementation View Still others are recommending potential applicants not apply the first few months until we see how the program is being implemented. However, this view will depend upon if you are a political optimist (the program or some variation of it will continue, so there is time to see how it is implemented), or if you are a political pessimist (don’t wait more than a month or two because the election could change things).

Two program examples with implementation issues are the 1) 1986 legalization program and 2) last year’s expanded prosecutorial discretion program. In 1986, many potential applicants for legalization (amnesty) were turned away due to interpretations of law taken by the former INS officials. This resulted in decades of litigation with many people eventually earning the right to apply by court order, albeit years after the program officially ended. By contrast, the much ballyhooed prosecutorial discretion program to close immigration court cases announced last summer has resulted in less than 1.5% of pending immigration cases being administratively closed, according to a recent TRAC study of the implementation of the broader prosecutorial discretion program through May 31, 2012. Will Deferred Action be implemented with compassion? Will large numbers of people benefit or only a few? Will it be interpreted and implemented consistently or haphazardly? How hard or easy will it be to provide evidence of eligibility? What will be the incentive to step forward? Will the program be vulnerable to fraud and thus possible elimination by the Congress or President? Or will it have integrity, trust, and timely adjudications to be successful, so that Congress is inspired to quickly pass a real DREAM Act or other status?

4) This is the Best We’ll See for a Long Time View The final group of immigrant advocates, many of whom are the young DREAM advocates who already “outed” themselves publicly, feel this is the best opportunity they could get or the best we will see for awhile for some type of authorized status. It’s better than nothing, and gives some hope to young people who are focused on their futures. In fact, it is probably one of the most significant programs immigration advocates have seen since immigration reform bills were passed in 1990 and 1996. Assuming a divided Congress continues to do nothing in the next few years, this may be the best we see for a long time in terms of new benefits.

Individual Considerations
Then there are the individual and family considerations. For families who have been living in the shadows for years but getting by, maybe continuing to live that way will work for some until a better program comes along. On the other hand, for others, stepping forward now may be worth the risk, especially for families who have no other options, and for young people who need to work to survive or have some other wonderful opportunities to pursue. Obviously, anyone with eligibility concerns should seek legal advice from a qualified attorney or Board of Immigration Appeals accredited organization or representative. The four view points above are the ones people with “clean” cases should consider. In the end, it is really going to be an individual decision based on risk tolerance, family situation, likelihood of future legal immigration or removal, current and future life opportunities, and other factors.

DREAMers – Make Sure You Really Understand What this Program Is and Isn’t
Finally, potential applicants should seek legal advice about their situation and the impact it could have on their families. One should fully understand the risks and benefits, and review with a professional the good and bad facts in a case. The government is going to look at each application on a case-by-case basis, looking not just at the requirements but also balancing the negative facts and equities in each case in order to determine how to exercise its discretion. This is because Deferred Action is only one part of the government’s broader prosecutorial discretion initiative, which is about allocation of resources based on the exercise of discretion. Because the media often refers to Deferred Action as “amnesty”, “legalization,” or some legal long term “benefit” or “new law,” it is even more important to truly understand this rather obscure procedure and how it applies to an individual’s unique circumstances, since Deferred Action is neither a visa, green card or citizenship. One should fully appreciate and understand the potential consequences of voluntarily stepping forward and revealing one’s unauthorized status. We still need to know whether applications will be treated confidentially, if at all, (i.e., whether denials can be used for any purpose in the future or against family members) and what will happen to people if their cases are denied. We still need to know how the requirements will be interpreted, as there are many questions right now. Finally, we need to know how the program will be implemented (i.e., procedurally and in terms of success/failure rates). Therefore, the fundamental question for the group of young people who have never been in removal proceedings or had prior contact with immigration officials is going to be whether to apply at all, even if eligible.