Canal Alliance

Summary of June 18, 2012 Conference Call on Deferred Action for “Young People Who Are Low Enforcement Priorities”

By: Terry Bright

Featured speakers:

• Alejandro Mayorkas, USCIS Director
• David Aguilar, CBP Acting Commissioner
• John Morton, ICE Director

The three spoke in turn about how each of the DHS sub-agencies they direct will implement the DHS memo from DHS Secretary Janet Napolitano issued 6-15-2012.

All emphasized that their comments in the conference call about how the program might be implemented are subject to change as the issues are discussed in order to issue the definitive guidelines and interpretations of the eligibility requirements. 

The program is to be implemented within 60 days of 6/15/2012.

Sources of information:

• Websites to check on developments:  www.uscis.gov and www.ice.gov
• USCIS phone number for info on the program:  800-375-5283
• ICE hotline for program info:  888-351-4024

Highlights:

Director Mayorkas clarified that even though the memo says an applicant must be 15 years of age (and not have been 31 or older as of 6/15/2012), an applicant who meets the basic eligibility requirements, but was under 15 when the memo was issued on 6/15/2012 can apply once he or she reaches the age of 15.   The implication was also that an applicant who was under 31 on 6/15/12 and met the requirements could apply even after reaching age 31.

Removal proceedings will not necessarily be started for those denied Deferred Action. The decision to institute such proceedings will be consistent with the Notice to Appear policy that addresses enforcement priorities of DHS.

The conference call did not address what “is currently in school” means since most schools were not in session on 6/15/2012; nor what types of schools will qualify.

The basic eligibility requirements are:

§         Came to the US before the age of 16

§         Continuous residence in the U.S. for at least 5 years before 6/15/2012

§         Present in the U.S. on 6/15/12

§         “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 Armed Forces of the U.S.”

§         Has not been convicted of a felony, a significant misdemeanor, or multiple non-significant misdemeanors (3 or more), or otherwise poses a risk to the national security or public safety

§         Is not above the age of 30.

Director Mayorkas’ comments:

It is not yet known what the application procedure will involve; what specific department or division will rule on the applications; or what the turnaround time will be since that will depend on the volume and timing of applications. 

He warned against fraud by notarios and other unscrupulous practitioners.

Explained that deferred action (“DA”) is a discretionary decision to defer removal, which is an act of prosecutorial discretion.  DA is not a lawful status; but a person with DA will not accrue “unlawful presence” in the U.S. (which can have immigration consequences) during the time DA is held; but any unlawful presence before or after DA status will still count or accrue.

Those whose DA applications are approved will be eligible for employment authorization in the form of an EAD card.

DA is for a 2-year period subject to renewal. At renewal, would apply for an EAD extension.

Background checks are required before DA can be approved and an EAD issued.

Documents to show 5 years of residence, graduation, school attendance, or military/Coast Guard service, and presence in the U.S. on 6/15/12 are “financial, medical, school, employment and military records.”

There will be NO appeal of a DA denial.

Dependents or immediate relatives (spouse, parents, minor children) will not gain any benefits from their relative granted DA. Each person granted DA must qualify on his/her own.

Whether those granted DA would be able to travel outside of the U.S. is being discussed. There is no decision on this yet. (TAB comment: traveling out of the U.S., even with a USCIS-issued travel document may trigger 3 and 10 year bars to eligibility for permanent residence. So even if travel becomes a possibility, the consequences of such travel must be carefully reviewed before any travel occurs.)

ICE Director John Morton’s comments

ICE will work with CBP to be sure that DA eligible people are not removed or placed into removal proceedings if meet eligibility criteria.

If a person is in removal proceedings already, upon establishing eligibility, removal proceedings will end [TAB comment: didn’t say whether would be definitively ended or just “administratively closed” which means the case is still pending and can be started up again without the issuance of a new charging document, the NTA (Notice to Appear)].  Such a person would then be directed to apply for the EAD with the USCIS.

Also under ICE’s implementation of the prosecutorial discretion program, some had their removal proceedings administratively closed. Those eligible for DA can still apply even if already granted administrative closure of their removal proceedings.

Acting Commissioner of CBP David Aguilar’s comments

When CBP encounters a possibly eligible person, CBP will detain while conducting an interview and the background checks, which can include checking with all federal law enforcement and some state and local enforcement agencies’ databases.  Once the check is done (which should normally take only a few hours, he said), the person can be released to complete the application process, including the application for the EAD. Such a person would not have an NTA issued and would make their application directly to USCIS.

Q&A from the callers:

A person who just overstayed or entered “ewi” and had no criminal convictions, but was not eligible for DA and whose application was denied, not likely to be put into removal because he or she would not meet the NTA policy guidelines posted on the USCIS website.

When the DA program ends, there is “no intention” to initiate removal proceedings against the grantees.

If are in elementary or junior or even high school, but otherwise meet the basic eligibility requirements as of 6/15/12, can apply once reach the age of 15.

Note: need to have obtained GED already by 6/15/12 if plan to qualify under GED prong.

A significant misdemeanor is defined in the DHS Q&A. Will include a DUI and “larceny” and assaults and drug and firearms crimes. (TAB comment: no further elaborations on these crimes).

Even if a state makes some conduct a misdemeanor that other states do not, a conviction will still count as one of the multiple misdemeanors (3 or more make a person ineligible.)

Even with a final order of removal, a person qualifies for DA and must make the application to the USCIS.

Whether a specific form or fee will be required is under discussion as is whether a fee waiver will be available if a fee will be charged.

Whether “juvenile adjudications” (historically and in the law itself are not considered crimes or convictions) will effect eligibility has yet to be determined.

Family members of DA applicants who are not DA eligible are not in danger of being investigated or having removal proceedings against them initiated due to information in the DA application.