Applications will be available on August 15; DHS will issue guidance on August 1.
1. John Lennon – This great music icon has contributed more than just the song “Imagine” to Dreamers. We have John Lennon to thank for deferred action. Deferred action existed as “non-priority program” under legacy Immigration and Naturalization Services but it was not known about till the U.S. tried to deport John Lennon and he challenged his order of removal. Lennon’s attorney did a FOIA request and found an unpublished INS Operations Instructions, describing non-priority as, “an act of administrative choice to give some cases lower priority.” Non-priority was renamed “deferred action” in 1975 under new and publicly released Operations Instructions, which stated, “in every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category.” The INS Operating Instructions said that consideration should be given to advanced or tender age, lengthy presence in the United States, physical or mental conditions requiring care or treatment in the United States, and the effect of deportation on the family members in the United States. On the other hand, those INS Operating Instructions made clear that criminal, immoral or subversive conduct or affiliations should also be weighed in denying deferred action.
2. Deferred action does not create any affirmative right. Deferred action status amounts to a temporary reprieve from deportation, which is highly discretionary and granted on a case-by-case basis. Federal appeals courts have long held that a grant of deferred action does not have the force and effect of substantive law, which means that a non-citizen cannot sue for denial of deferred action since it creates not property or liberty interest. Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985); Pasquini v. Morris, 700 F. 2d 658, 659 (11th Cir. 1983); Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981); Lennon v. INS, 527 F.2d 187 (2d Cir. 1975). Today within the Department of Homeland Security (DHS), all three of the immigration-related agencies—ICE, U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP)—possess the authority to grant deferred action at their discretion. This discretion is not appealable to any court, which means that people who are denied deferred action do not have a legally cognizable claim to sue for denial of an affirmative benefit.
3. Deferred action is premised on many internal guidance and policy memoranda. Deferred action is a form of prosecutorial discretion that an agency can exercise on an individual case-by-case basis. Under 8 C.F.R. § 241.6, DHS can grant a stay of removal to a non-citizen who has been ordered deported or removed from the United States. The authority to issue deferred action is well-documented in agency manuals and internal memoranda such as:
- ICE Detention and Removal Operations Policy and Procedure Manual
- The Cooper Memo, INS Exercise of Prosecutorial Discretion
- The Meissner Memo on Exercising Prosecutorial Discretion
- The Howard Memo, Exercising Prosecutorial Discretion to Dismiss Adjustment Cases
- The Myers Memo, Prosecutorial and Custody Discretion
- The June Morton Memo, Civil Immigration Enforcement: Priorities for the Apprehension, Detention and Removal of Aliens
- The August Morton Memo, Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions
4. Legacy INS and DHS has a long history of using prosecutorial discretion in the cases of individuals in a wide range of circumstances. The Executive branch has provided blanket deferrals of deportation numerous times over the years. Starting in 1976, Legacy INS issued extended voluntary departure (EVD) to Lebanese nationals who were otherwise deportable from the United States on a case-by-case basis. The same benefit was granted to Ethiopians in 1977, Ugandans in 1978, Nicaraguans and Iranian nationals in 1979, Afghans in 1980, Polish nationals in 1984, Salvadorans in 1992, Haitians in 1997 and so on. Prior to the repeal of the widow penalty, DHS granted deferred action to U.S. citizen widows and widowers and their children under 18 years of age in the United States, who were facing deportation because they had been married to their deceased U.S. citizen spouses for less than two years. International students who had been affected by Hurricane Katrina were also granted deferred action. On some occasions, DHS has agreed to not deport individuals with criminal records, mentally deficient or physically impaired people, notorious drug traffickers, and other aggravated felons using prosecutorial discretion.
5. The origins of DREAM Act deferred action – The first known case of deferred action for a DREAM Act-eligible youth is Walter Lara, who was brought here from Argentina when he was merely three years old. Lara, a graduate of Miami Central Senior High and Miami Dade Honors College, was detained by ICE in February 2009. He agreed to voluntary departure in March 2009 and he was ordered to leave the country by July 4, 2009. Andres Benach and his team took the case pro-bono and with the help of organizers, got this young, brilliant man deferred action on the premise that he was a DREAM Act-eligible student with long-term residency in the country and no criminal record. The rest is history, as immigration advocates have filed for deferred action successfully in more than a thousand cases to stop the removal of young immigrants from the United States. Led by undocumented youth, these campaigns have been branded as “Education Not Deportation,” which paved the way for the June 15 announcement by President Obama.
6. What benefits do I get with deferred action? Deferred Action allows an individual to apply for an “Employment Authorization Document” (EAD) to work in the United States under Sec. 274a.12(c)(14), if they can prove “economic necessity.” Immigration officials have interpreted this broadly to grant work authorization provided the regulatory criteria is met. The Social Security Administration issues Social Security Numbers to people with an EAD, which reads “Authorized to Work with DHS Approval.” In many states, these two documents—an SSN card and an EAD—are enough for the issuance of driver’s licenses and state identification cards. Any other benefit such as instate-tuition, Medicare and other public assistance program is up to the discretion of the individual state. The grant of deferred action does not provide the individual with a pathway to permanent residence or U.S. citizenship and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”
7. Individuals who get deferred action are considered lawfully present for very narrow purposes. Any individual granted deferred action does not accrue unlawful presence in the United States. Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom’s Officer at the time of entry. Non-citizens who accrue more than 180 days but less than 1 year of unlawful presence are barred from re-entry to the U.S. for three years. Similarly, non-citizens who have been in the U.S. for one year or more beyond the period of authorized stay are barred from re-entering the U.S. for ten years. A minor child, under the age of 18, does not accrue unlawful presence for purposes of the three and ten year bars until the day after his or her 18th birthday. As such, Dreamers who are granted deferred action while they are under the age of 18 can go on to obtain non-immigrant visas such as a H-1B, since technically, they would not have any unlawful presence. Do note that although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence.
8. How do I get work authorization with deferred action? Currently, you must submit an I-765 Form to USCIS, which is an application for work authorization and pay the appropriate fees. On the I-765, you will cite 8 CFR 274a.12(c)(14), the regulation for deferred action, for question 17.158. On average, a decision is made in three months.
9. Individuals with final orders of deportation are eligible for deferred action if they have not yet left the country. Yes, deferred action has primarily been used in cases where individuals were granted final orders of removal. This includes a final order of removal order inabsentia, a voluntary departure grant that turned into a final order of removal, and even a final order of removal issued by an Immigration Judge after substantial adjudication. However, in order to qualify for deferred action, an applicantmust have remained in the country after their final order of removal and not left only to re-enter without authorization. Individuals who have departed the country after final orders of removal and re-entered without inspection will not qualify for deferred action and should not apply since they may be subject to imprisonment under 8 U.S.C. § 1326.
10. Deferred action is encouraging people to go back to school and obtain their GEDs. Based on early conversations with USCIS, officers were not going to grant Deferred Action to people who enroll in GED classes or obtain their GED after June 15, 2012. We have thoroughly opposed to this and as of now, we are hearing that as long as people are enrolled in a GED program, they should be able to qualify for deferred action. Individuals who have not yet obtained their GED or high school diploma are highly encouraged to go back and enroll in GED classes.
Click here to download PDF file: Ten Things You May Not Know About Deferred Action