On November 20, President Obama made a long-awaited announcement detailing what steps his administration will take to provide relief from deportation for Americans without papers. The announcement included other steps the administration is taking within its legal authority to mitigate problems with the immigration system that so far Congress has been unwilling to tackle. Here are five major elements of the plan.
Deferred Action for Parents
Parents of U.S. citizen or legal permanent resident children will be able to apply for deferral from deportation and work authorization for three years. Relief will be provided only to those who have resided in the U.S. for five years or more. To be eligible, individuals must have been present in the U.S. since January 1, 2010 (or earlier), pass a criminal and national security background check, pay taxes, pay a fee (to be determined), show that their child was born before the announcement (November 20) and not fall into one of the administration’s enforcement priorities. This program alone, scheduled to be up and running in six months, could potentially help 4.1 million people.
Deferred Action for Childhood Arrivals (DACA)
The DACA program currently applies to persons who were brought to the U.S. illegally when they were children, and provides temporary protection from deportation and work authorization for two years. It will be expanded. The age cap will be lifted (the program currently serves those who are currently no older than age 31). The cutoff date (the date by which a requester must have been in the U.S.) will be moved up from June 15, 2007, to January 1, 2010. Protection from deportation and work authorization will be granted for three years. This program, which will take three months to implement, may provide relief for approximately 270,000 people.
Family Unity Waiver
Ordinarily, an individual coming to the U.S. as an immigrant, when her immigrant visa is available, obtains the visa at a U.S. embassy or consulate in the home country. If that individual is already in the U.S. and is out of status, once she leaves the U.S., she becomes subject to a bar to reentry (for three or ten years, depending on the length of unlawful presence). A waiver can be obtained, but until March of 2013, the individual had to apply for the waiver after she departed the U.S. The individual would be separated from her family for weeks or months while the waiver was processed.
Beginning in March of 2013, the administration changed the process for administering the waiver of the three- and ten-year bar to reentry for the spouses, minor children and parents of U.S. citizens who had to leave the country to pick up an immigrant visa at a U.S. embassy or consulate in their home country. Instead of applying for the waiver from outside the U.S., these individuals can, under the new process, remain in the U.S. while the waiver is being processed, thus avoiding lengthy separation from their families. The process will be expanded to include the spouses and children of legal permanent residents, and to adult children of U.S. citizens and permanent residents. In addition, the government will draft new regulations governing the definition of extreme hardship an individual must show in order to qualify for the unlawful presence waiver.
Replacing the Secure Communities Program
The Secure Communities program will be discontinued and will be replaced with a Priority Enforcement Program. This program will continue to rely on fingerprint data submitted by local enforcement agencies during booking, but ICE will only in rare circumstances request local enforcement agencies to hold an individual. Instead, ICE will make requests for notification of the pending release of an individual who falls within certain specified priorities contained in the new ICE Enforcement Priorities (see below), or if the individual clearly poses a risk to national security. In the cases where ICE requests an agency to hold an individual, it must specify that the individual is subject to a final order of removal, or there is sufficient probable cause to find that the individual is removable. (This stipulation is necessary to address the Fourth Amendment concerns that have been the subject of numerous lawsuits against local agencies holding individuals without charge.)
New Enforcement Priorities
The Department of Homeland Security has issued department-wide guidance on enforcement priorities, superseding the enforcement priorities issued by John Morton for ICE in 2011 and other prior memos. According to the new memo, the highest priorities for removal are: 1) threats to national security, border security, and public safety; 2) misdemeanants and new immigration violators; and 3) other immigration violators. Priorities 1 and 2 are broken down into subcategories. Within priority two, the “new immigration violators” are described as persons apprehended after illegally entering or re-entering the U.S. and who cannot establish that they have been continuously present since January 1, 2014. Other immigration violators (priority 3) are described as having been issued a final order of removal on or after January 1, 2014. The memo also specifies that detention resources should follow the priority enforcement guidelines. The memo also directs the Office of Immigration Statistics to collect enforcement data that will show how well the priorities are being followed, and the data will be publicly released.
There are many other components of the administration’s announced action, and more detail can be found in my longer summary, written for the National Immigration Forum’s Policy Update.
Maurice Belanger Consulting 