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The adminisitration electrified the immigration world today by announcing a new policy offering discretionary relief to young undocumented immigrants as a group.  This announcement changes administration policy by moving from a de facto cases by case basis of providing relief for undocumeented young immigrants to a blanket grant of protection for those who fall within the broad DREAM Act categories.

Background

Since the failure of the DREAM Act in the U.S. Senate, the Administration has been under intense pressure to do something for the intended beneficiaires of the DREAM Act- undocumented individuals who came to the U.S. as children, through no fault of their own, and were educated and acculturated into the U.S. and run out of options when they became adults.  The administration has largely granted deferred action- a form of discretionary official indfference to removing a partiucular individual– to DREAMers with removal orders.  However, the DREAMer had to self-identify and mount a major campaign to persuade Immigration & Customs Enforcement (ICE) not to remove them and to grant deferred action.  Large scale public campaigns and protests have been common to help stop the removal of particular individuals.

What does the administration’s plan do?

The administration has announced a plan to provide deferred action with employment authorization for a period of two years to those who fall within the broad outline of intended DREAM Act beneficiaries.  Deferred action may be granted for a two year period, with work authorization, and subject to renewal to individuals who meet the following criteria:

• Came to the US before the age of 16
• Have resided in the U.S. for five years prior to June 15, 2012
• Are currently in school, have graduated from high school, have obtained a GED or are an honorably discharged veteran of the Armed Forces or Coast Guard
• Have not been convicted of a felony offense, a signficiant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety
• Are not over the age of 30

The plan directs ICE to provide deferred action for people who fit within these criteria.  Those encountered by ICE are not supposed to be placed by ICE into removal proceedings.  Those already in removal proceedings are to be identified and provided with deferred action.

What the plan does that is really amazing, however, is that provides a means of obtaining a benefit for those individuals who are not on ICE’s radar at all.  Previously, the administration refused to consider deferred action for undocumented individuals who were not in removal proceedings or who had orders of removal.  ICE took the position that there was “nothing to defer” for people who had not yet been swept into the removal apparatus.

The new plan provides an opportunity for undocumented individuals to come forward and to seek deferred action.  This fact has the power to expand the universe of potential beneficiairies for deferred action well beyond the case-by-case post final order analysis performed now.

So, should I come forward and apply?

Not yet!!!  First, we are just figuring this out and a decision about whether to bring yourself to the attention of DHS requires a very careful analysis that should be done in consultation with counsel.  Second, remember that deferred action is an act of administrative grace that could be taken away by future administrations.  As Romney has not yet stated what he would do (we are not optimistic), this program can be stillborn by November.  Third, there is no procedure yet in place, so the government would not know what to do with applications and requests.  The memo instructs ICE and CIS to establish procedures and begin adjudicating within 60 days.

Why did the administration do this?

Politics?  Election? Hispanic voters?  Who cares???  This is a good thing.

This would not have happpened without the very courageous efforts of the Dream Act activists who have created a powerful political movement.  By coming out as undocumented and sharing their stories, by holding rallies, organizing online and in person, demonstrating, holding hunger strikes and occupying political offices, the Dream activists have made this an unavoidable issue and a large share of the credit for today’s announcement goes to them.  Like the civil rights movement of a previous generation, this struggle for rights was led by the children.