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Deferred Action Policy for Childhood Arrivals

Posted by attorney Rehan Alimohammad

Secretary of Homeland Security Janet Napolitano announced on June 15th that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;

  2. Have continuously resided in the United States for a least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;

  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

  5. Are not above the age of thirty as of June 15, 2012

  6. Must be age 15 or older at time of filing unless in removal proceedings (details on this below)

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance took effect immediately, USCIS and ICE begin acceptance of the application on August 15, 2012.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

“Deferred action is when the Department of Homeland Security (DHS) agrees not to place an individual in removal (deportation) proceedings or not to execute an order of removal. A decision to grant or deny a request is a purely administrative act and it is not subject to review by either administrative or federal courts."

The period of time in which a person is in deferred action status is considered to be a stay authorized by the Attorney General and the individual does not accrue any unlawful presence during that period of time.

The request may be made at any time during the administrative process, from the time an individual seeks entry to the United States, until final removal.

Factors that a field office takes into consideration in deciding requests include: the likelihood of the individual’s ultimate removal from the United States; sympathetic factors which may generate a large amount publicity; the need for the individual’s presence to assist law enforcement in an on-going investigation or prosecution of a case; and, whether the individual is a member of a class of deportable noncitizens whose removal has been given high enforcement priority, for example, terrorists or drug traffickers.

If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals,you must be at least 15 years of ageor older at the time of filing and meet the other guidelines.

If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.

In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole but USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

This rule does not create an amnesty, nor does it create benefits for family members who do not meet the requirements on their own. Further, the authorization of employment requires proof of economic necessity.

Also, if a person commits fraud in filing for the status and is found to have committed fraud, could end up becoming a high enforcement priority.

This status is not for everyone and a competent attorney who has experience in immigration and removal should be consulted.

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