Secretary Janet Napolitano has announced a new DHS process for some individuals to apply for "deferred action". "Deferred action" is a type of discretionary relief from deportation that gives recipients the chance to live in the United States and even gain work authorization. It does not, however, confer legal immigration status or a road to possible citizenship. The new process, outlined in a memo also released today, would allow individuals to be granted deferred action if the person:
- Arrived in the United States before the age of 16 and is under the age of 31;
- Has continuously resided in the United States for at least 5 years preceding June 15, 2012;
- Was present in the United States on June 15, 2012; and
- Is in school, has graduated from high school, received their G.E.D., or has been honorably discharged from the Armed Forces or Coast Guard.
- Has not been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise poses a threat to public safety or national security.
Although this new process is good news for undocumented students and graduates, there are many caveats. First, let us be clear: this is not the DREAM Act. The main difference is that the DREAM Act would have granted a legal immigration status to qualifying individuals and would have opened a possible road to permanent residence and eventual citizenship. By contrast, the new deferred action process confers no legal immigration status, but rather merely relieves the individual of the threat of deportation -- for now. Second, the process is implemented through a DHS memo, which could be revoked or amended at any time by Ms. Napolitano or any future Secretary of Homeland Security. If the political winds change, the policy and process could very easily change as well. Third, it is a merely discretionary form of relief. Although the above requirements are necessary to be granted deferred action, one must also convince the ICE or USCIS officer that he or she is deserving of the relief. This discretion means that one could fully qualify for deferred action through this new process and yet still be denied because an officer does not consider the case to merit a favorable exercise of discretion.