By Rhodora Derpo
Immigrant Rights Advocate
On Nov. 20 President Obama announced a series of changes to current immigration policy, including expanded enforcement at the border, the prioritization of deporting or removing felons over families, and requiring certain undocumented immigrants to pass a criminal background check and paying taxes in order to temporarily stay in the United States without fear of deportation or removal. While the executive action on immigration will not provide relief to all of the 11 million undocumented immigrants living in the United States, President Obama's plan will ease the threat of deportation or removal for at least 4.4 million undocumented immigrants.
President Obama's executive action creates a system in which certain undocumented immigrants will have to come out of the shadows to register with the government, undergo background checks, and receive work authorization so employers do not exploit them. President Obama's plan prevents families from being separated. However, his plan is not a permanent solution. It is limited in terms of the people who can benefit from it. It does not provide a green card (or lawful permanent residency) or U.S. citizenship. To be clear, only an Act of Congress can confer these benefits. For parents of U.S. citizens and lawful permanent residents, it provides only a temporary reprieve from deportation or removal.
This article will address certain components of President Obama's immigration executive action. It will also briefly discuss President Obama's constitutional authority to halt deportations or removals of undocumented immigrants whose children are U.S. citizens or lawful permanent residents.
Deferred Action for Parents (DAP)
Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present in the U.S. since January 1, 2010, and who pass background checks and pay taxes, will be eligible to work authorization and will be granted relief from the threat of deportation or removal for three years at a time on a renewable basis. Applicants will be required to pay the work authorization and biometrics fees, which currently amount to $465. United States Citizenship and Immigration Services (USCIS) will begin accepting applications from eligible applicants no later than 6 months from now (or by May 19, 2015). Note that parents of Deferred Action for Childhood Arrivals (DACA) recipients are not eligible.
Expansion of Deferred Action for Childhood Arrivals (DACA)
The age cap in DACA will be eliminated. To qualify, the eligibility cut-off date by which an applicant must have been continuous presence in the United States will be adjusted to January 1, 2010. Deferred action will be granted for 3 years (including those with pending renewal applications). USCIS will begin accepting applications no later than 90 days (or by February 18, 2015).
Immigrant and Customs Enforcement (ICE) will review cases currently under proceedings to see who is eligible for the relief stated in the above programs, and if eligible, those cases will be closed.
Many of the existing memos issued by the Department of Homeland Security on enforcement priorities and prosecutorial discretion will be replaced by a new memo that will name three enforcement priorities, which will become operational immediately:
• Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and people apprehended on the border;
• People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after January 1, 2014); and
• Those who, after January 1, 2014, failed to leave under a removal order or returned after removal.
The memo will contain "strong language" on using prosecutorial discretion appropriately.
President Obama's Constitutional Authority to Enforce Immigration Law
President Obama has the constitutional authority to decide to have the Department of Justice proceed or not proceed with deportations or removals. Federal law is clear on this issue. The Immigration and Nationality Act (INA), which is a federal statute that establishes legal rules and requirements regarding immigration and naturalization, gives the Executive Branch (President, Homeland Security, Attorney General, and Secretary of State) the power to enforce immigration laws. The U.S. Supreme Court recognized the President's broad prosecutorial discretion when it declared in United States v. Nixon that, "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case."
Furthermore, President Obama's executive action on immigration is not unprecedented. Presidents of both political parties have used executive authority on a similar scale and have tailored immigration policy to their own goals. In 1987, for example, President Reagan took executive action to limit deportations for 200,000 Nicaraguan exiles, even those who had been turned down for asylum. In 1990, President George H.W. Bush similarly limited deportations of Chinese students and in 1991 kept hundreds of Kuwaiti citizens from being deported. President Obama is well within his constitutional authority to make decisions on when and how to initiate removal proceedings.
Are you eligible for relief under President Obama's executive action?
If you qualify for protection from deportation or removal under President Obama's executive action, you should begin collecting documents--from birth certificates to utility bills--that will assist you in proving eligibility. Gather documents that establish your identity, relationship to a U.S. citizen or lawful permanent resident, and continuous residence in the United States over the last five years or more.
If you are uncertain about whether you qualify, contact my firm at 773.687.9282. We are offering a FREE 30 minute consultation for the month of December. Nagsasalita po ako ng Tagalog. •