By Angela D. Adams
Just minutes before attending my first session of the second day of the American Immigration Lawyers Association annual conference in Nashville, Tenn., I began to receive a flood of emails and tweets on my phone about an announcement which would completely change the lives of an estimated 1.4 million immigrant youth, commonly called “Dreamers,” across the country and between 21,000 and 29,000 immigrant youth in Indiana. As I stood in the coffee line, I wondered, “Is this really happening? Is this a joke? Am I dreaming?”
It was not a dream. Tears began to well up as I thought of all of the kids I have worked with in the last 15 years who would possibly benefit from this news. These are kids who were brought to the U.S. at a very young age through no fault of their own and have no other way to fix their status. They are Americans in every way except they are undocumented.
Along with 3,000 other immigration attorneys, I witnessed a live announcement that I and others have been anticipating for so long. The crowd smiled, cried, cheered and stood in disbelief as we listened and watched the president’s speech on three big screens. During commercial breaks we received briefings from AILA national staff. While the previous day had been spent largely criticizing the Obama administration for a lack of action in the area of immigration, Friday morning brought a complete game changer followed by a sudden change of heart. I will forever remember that as one of the top 10 coolest moments in my life.
Within the executive authority of the president, Secretary of Homeland Security Janet Napolitano issued a memorandum dated June 15, 2012, announcing that it would begin exercising prosecutorial discretion by allowing certain immigrant youth to apply for “deferred action.” Deferred action is a discretionary act of administrative convenience to the government which gives some cases lower priority. In an effort to clarify enforcement priorities, the Department of Homeland Security has decided not to initiate removal proceedings against those who meet the following five criteria for deferred action: (1) Entered the U.S. prior to the age of 16; (2) Continuous residence in the U.S. for at least five years immediately preceding and have been physically present in the U.S. on June 15, 2012; (3) Currently enrolled in school, have graduated from high school or have obtained a GED; (4) Not have a conviction for a felony offense, a substantial misdemeanor offense or multiple misdemeanor offenses; and (5) Not above the age of 30.
Individuals who qualify for deferred action will be eligible to apply for employment authorization for a period of two years, subject to renewal. Employment authorization allows one to also apply for a Social Security number and state identification card and/or driver’s license. In addition, deferred action may open the door for students to be eligible to pay in-state tuition at public colleges and universities. Most importantly, deferred action will serve to protect qualifying individuals from deportation or removal.
Deferred action is not an amnesty or immunity. It does not lead to lawful permanent residency or U.S. citizenship. It does not permit one to apply for family members. Those who qualify are not able to vote and are still subject to removal if they commit certain removable offenses.
The process to apply for deferred action is still unknown and many details are yet to be determined. DHS has been instructed to issue further guidance and clarification on the requirements and details of the application process, form, filing fee, etc., in 60 days. Unfortunately, unscrupulous notarios and immigration consultants are already coming out of the woodwork to sell misinformation to the public. Individuals who believe they may be eligible should be advised to seek legal advice from a competent immigration attorney. In addition, individuals who do not qualify should not apply as this could open them up to serious consequences, including the possibility of being placed in removal proceedings.
One cannot help but appreciate the fascinating politics and ingenious timing of this executive directive. For starters, the announcement was made on the 30th anniversary of the seminal U.S. Supreme Court decision, Plyler v. Doe, 457 U.S. 202 (1982), in which the court held that undocumented school-age children could not be denied free access to public education. It was also the first anniversary of the president’s memorandum on prosecutorial discretion, which critics suggest did not go over as well as planned. Also not by coincidence, the annual AILA conference provided 3,000 messengers who were perfectly poised to positively spread the word. Republican leaders had already announced their own version and support of the DREAM Act, and this further forced their hand.
Undoubtedly and obviously rallying for the Latino vote, both parties are now forced to take a serious look at immigration reform as the result of this announcement. This memo, followed by a recent and historic U.S. Supreme Court decision on the Arizona law, Arizona v. U.S., 567 U.S. ___ (2012), have started the snowball rolling toward comprehensive immigration reform just in time for the next election. In fact, the Supreme Court’s 5-3 decision to strike down major parts of Arizona’s immigration law suggests that the president acted within his executive power. The opinion emphasized the “broad discretion” of the federal government to set priorities in choosing which immigrants to deport. Even Justice Antonin Scalia in his dissent said the executive branch has supremacy over immigration.
The battle has only just begun. The polls are showing that the majority of Americans (64 percent) support this policy of deferred action for Dreamers. Sometimes the political thing to do also happens to be the right thing to do. Much more than a political move, it appears that the president’s directive is slowly nudging the immigration conversation back to the middle — where it belongs. The challenge will continue to be getting Congress to face the music, have a rational debate on immigration reform and pass a long-term solution.•
Angela D. Adams is an attorney and director with the law firm of Lewis & Kappes P.C. concentrating on immigration matters. She is board president of the Immigrant Welcome Center and vice chair of the American Immigration Lawyers Association Indiana Chapter, and she has served as an education consultant for the Indiana Department of Education, division of language, minority and migrant programs. She is co-founder of META: Mapping Education Towards Achievement, a post-secondary awareness seminar for Hispanic students. The opinions expressed in this column are those of the author.