Seguritan US Immigration Articles

Fight for DAPA/DACA To Continue Despite SC Ruling

Immigration was at the forefront of very significant events last week. On June 23, the United Kingdom voted to leave the European Union and immigration concern was a major factor. Meanwhile on the same day, here in the United States, the Supreme Court deadlocked on Pres. Barack Obama’s immigration initiatives.

The Supreme Court’s evenly-divided decision in the case of United States v. Texas means that the lower court decision against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action on Child Arrivals (DACA) stays.

Pres. Obama introduced DAPA and DACA expansion in November 2014 following the failure of Congress to pass a comprehensive immigration reform bill. DAPA and DACA were meant to ease the threat of deportation of more than 4 million undocumented immigrants.

After Obama announced these immigration initiatives, Texas and 25 other states filed a lawsuit in the district court claiming that the expanded DACA and DAPA violated the “take care clause” of the Constitution. They also argued that the initiatives were not in accordance with immigration laws and violated the Administrative Procedure Act (APA). The district court judge issued a preliminary injunction blocking the implementation of these policies.

On appeal by the government, the Fifth Circuit upheld the injunction. Thus, the case found its way to the Supreme Court.

DAPA would temporarily defer deportation for those who have a US citizen or LPR son or daughter as of November 20, 2014 and who have continuously resided in the US since January 1, 2010 but with no lawful immigration status. As long as they had no criminal convictions and have passed a background check, these undocumented immigrants could benefit from DAPA.

DACA, on the other hand, was first introduced by the Department of Homeland Security (DHS) back in 2012. Those under 31 years old on June 15, 2012, have arrived in the US before becoming 16, have continuously resided from June 15, 2007 to the present, are either in school, have graduated or completed high school or a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or US Armed Forces and have not been convicted of a felony can benefit from DACA. The expanded DACA eliminated the age requirement and pushed the arrival date to January 1, 2010.

Since its implementation in 2012, DACA has resulted in the improvement of the lives and economic conditions of over 700,000 young people who were granted work permits, obtained access to public universities and scholarships, and opened a bank account, among others.

The ruling of the Supreme Court is a setback for immigrants and their families but immigrant rights advocates are vowing to continue the fight. They are urging the Department of Justice to seek a rehearing. If this is not granted, then the case will go back to the district court for a decision on the merits. If the district court decides to strike down the initiatives, the government could appeal the case all the way to the Supreme Court again.

Immigrant advocates are also continuing to lobby the US Congress to pass immigration laws that would keep families united and benefit the economy.

Consequences of Failing to Maintain Non-immigrant Status

For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

Nearly Half a Million Immigrants Overstayed Their Visa

Nearly half a million immigrants from all parts of the world have overstayed their visas, according to the recent Department of Homeland Security (DHS) Report released on January 19, 2015.

According to the report, of the nearly 45 million non-immigrant visitors who were in the United States either for business or vacation (holders of B1, WB, B2 and WT visas) and who were expected to depart the country between October 2014 and September 2015, 527,127 individuals overstayed their admissions. This placed total overstay rate at 1.17 percent which means that almost 98.83% of the non-immigrants followed their allotted visa stay and left the US on time.

Due to continuing departures, as of January 4, 2016, the number of Suspected In-Country overstays or those for whom no departures have been recorded had dropped to 416,500. It is also expected to drop even more as the number of individuals who have departed or adjusted status continues to increase.

An overstay is a nonimmigrant who lawfully came to the United States for an authorized period of time but failed to depart after the lapse of such period. The DHS identifies two types of overstays—Suspected In-Country Overstay or those for whom no departure has been recorded and Out-of-Country Overstay or those individuals whose departure was recorded after their lawful admission period expired.

The report shows that for fiscal year 2015, 226,777 Filipinos were expected to depart but 3,701 overstayed their visas. Out of this figure, there were 436 Out-of Country Overstay and 3,265 Suspected In-Country Overstay placing out total overstay rate at 1.63%.

Countries with a high total overstay rate include Afghanistan (10.86%), Burkina Faso (18.01%), Chad (17.43%), Djibouti (27.67%), Eritrea (19.28%), The Gambia (11.20%), Georgia (12.44%), Laos (18.44%), Liberia (11.93%), Mauritania (13.49%) and Federated States of Micronesia (16.00%). US neighbors Canada and Mexico have a 1.27% and 1.56% overstay rate respectively. However, some of the largest numbers were from countries like Germany with 21,394, Italy with 17,661, United Kingdom with 16,446 and France with 11,973. All of these countries are under the Visa Waiver Program (VWP).

According to the report, the DHS conducts overstay identification by examining arrival, departure and immigration status information. The Customs and Border Protection (CBP) obtains passenger manifest data from commercial air and sea departures from the US and passenger data on land departures into Canada. The report, however, admits that “determining lawful status is more complicated than simply matching entry and exit data”.

Obama Urged to Stop Deportations

Immigration advocates are appealing to President Obama to exercise his executive power and stop the deportation of thousands of undocumented immigrants in the country while Congress is at a standstill on immigration reform. At present, over 1,000 undocumented immigrants are being deported per day. Last year, more than 400,000 were deported.

President Obama changed his policy on deportation last year and deferred the deportation of thousands of young people who were illegally brought into the country as children. Over 455,000 undocumented young people have so far been granted deferred action.

This time, however, President Obama, in an interview, indicated that he cannot change his policy on enforcement nor expand the coverage of the deferment program. He also told progressive and labor leaders in a meeting that he cannot ease enforcement because his priority is to push for the passage of the immigration reform bill. According to an advocate, the goal is “getting the immigration reform passed, and that solves the problem – not starting a whole controversy as to whether he is easing up.”

Meantime, the President instructed the U.S. Immigration and Customs Enforcement (ICE) division to focus on the deportation of felons and multiple offenders. Advocates say that the ICE and the Department of Homeland Security continue to deport undocumented workers who are without any criminal record and are separated from their families. Last month, however, ICE issued a directive advising agents “to keep enforcement actions from unnecessarily impacting parents and primary caregivers.”

The President’s refusal to stop mass deportations has prompted immigration advocates to launch campaigns to demonstrate their frustration and disappointment. Seven undocumented workers affiliated with the National Day Laborer Organizing Network recently held a protest, handcuffing themselves at the gates of the White House and carrying signs with the words, “Mr. President Stop Deportations.”

Chris Newman, legal director of the same organization behind the protest expressed his concern saying, “There’s a clear contradiction in the president’s position right now. He’s saying either the House Republican’s will come around on the path to citizenship, or I’ll be forced to keep deporting people. And that’s an untenable position.” Advocates maintain that the president has the power to stop deportations and are determined to keep challenging him.

Meanwhile, advocates are also intensifying their campaigns to pressure Congress to pass the immigration reform bill. Thousands of people are expected to join a rally and a concert at the doorsteps of Congress on October 8.

The House Republicans’ refusal to bring the immigration reform bill to the floor has increased the frustration of the immigrant community. Although many are “losing heart” with the bill being sidelined for many reasons, immigration advocates will not stop pushing for the overhaul of nation’s immigration system. As Jaime Contreras of the Service Employees International Union pointed out, “It’s time for Republican leaders to start standing up to the extremists and let them know that inaction is not an option for us. We will not stop until we win this fight.”

Driver’s License for the Undocumented

A bill allowing undocumented immigrants to receive a driver’s license will soon become a law in California. Both houses of the California legislature recently passed the bill, AB 60, and it is now on its way to Governor Jerry Brown’s desk for his signature. The Governor indicated that he will sign the bill because it will “enable millions of people to get to work safely and legally.”

The Governor wanted to make sure that the bill complied with federal law and have the license clearly indicate that it is only for driving and not for work or for obtaining public benefits. The author of the bill, Assemblyman Luis Alejo, almost withdrew the bill because he preferred the words to be discreet and written on the back of the license. He later on accepted the amendments to make the distinction clear.

Once signed into law, California will be the eleventh state to provide driver’s license to the undocumented. For a number of years, Washington state, New Mexico and Utah have allowed undocumented immigrants to obtain driver’s license. Illinois passed a similar law January of this year. It was followed by Nevada, Maryland, Oregon, Vermont, Connecticut and Colorado.

Meanwhile, the debate as to whether the undocumented should be issued driver’s license continues. Some people look at this measure as a form of “quasi amnesty”. According to Mark Krikorian of the Center of Immigration Studies, “What it means is the government formally incorporating illegal aliens into the institutions of our society.”

Another concern is whether the bill undermines federal immigration laws. Under the bill, the Department of Motor Vehicles (DMV) will issue driver’s license to people who satisfy the requirements for a license but whose presence in the country is not authorized by federal law. Judicial Watch President Tom Fitton predicts that the U.S. Department of Justice will review it once it is signed into law.

Public safety, on the other hand, remains to be the principal argument why more states are enacting similar laws. The Economist reports that unlicensed drivers are almost five times more likely to be in a fatal crash and they are also less likely to stay in accident scenes. If the undocumented immigrant is granted driver’s license, he would not run from accidents for fear of deportation and will be more willing to cooperate with law enforcement.

Los Angeles Police Chief Charlie Beck said that the law would make the roads safer. Allowing the undocumented to apply for driver’s license would require him to undergo various tests which will determine if he is fit and capable of driving. Also, this would allow them to carry insurance and avoid hit-and-run accidents.

The law will also address the problem of undocumented immigrants who are stopped at routine checkpoints and whose cars are impounded because they don’t have valid licenses. Also, it will help decriminalize the daily activities of the undocumented such as driving his kids to school or driving to work to earn a living.

To ensure that the driver’s license issued is not used to avail of federal benefits, the license issued is distinct from that of U.S. citizens or residents. The license cannot be used for identification when boarding airplanes. It is merely issued for the privilege of driving. The license, however, cannot be used as a basis to discriminate against the holder.

It is hoped that with the passing of this bill in California, Congress will finally see the urgent need to address the problems of the undocumented in the country and pass the immigration reform bill.

Despite Opposition, Immigration Reform Likely to Pass This Year

The introduction of the comprehensive immigration reform bill in the Senate has spurred many conservative radio talk show hosts to agitate the American public to denounce the bill. They particularly harp on the proposed pathway to citizenship as “pure amnesty” and “nothing more than a reward” for illegal immigrants for breaking the law.

These talk show hosts also campaigned to help defeat the passage of a similar bill introduced during the Bush administration. The opposition was so intense in 2007 that the Senate immigration bill suffered a crushing defeat.

This time, however, the political atmosphere has changed and the strong opposition is no longer there. In fact, Sean Hannity who was one of the conservative talk show hosts who fiercely campaigned against immigration reform has changed his position along with some other conservatives. Republican opposition has also diminished as a result of the 2012 presidential elections.

The sentiment of the American public has also shifted, according to Michael Medved, another conservative radio talk show host who has always supported immigration reform. Based on a recent NBC News/Wall Street Journal poll, 76% of Americans are for the creation of a pathway to citizenship for the undocumented in the country.

While conservative radio talk show hosts has campaigned against the bill, evangelical Christians also launched their own drive to support immigration reform. It is interesting to note that most of them were also opposed to the immigration reform efforts in 2007.

Meanwhile, it has been reported that a number of Republican members of Congress are eyeing to delay the process and proposing “poison pill” amendments to defeat the bill. Senator Charles Grassley even tried at the first Judiciary Committee hearing to link the Boston Marathon bombings to the immigration debate.

But Republican Senators John McCain and Lindsey Graham as well as House Speaker John Boehner and Representative Paul Ryan were quick to point out that the bombings should not slow down the bill. Rep. Paul Ryan said that, “If anything, what we see in Boston is that we have to fix and modernize our immigration system for lots of reasons.”

A number of Senate members have already joined forces to make sure the core provisions of the bill will remain unchanged. The Judiciary Committee expects to open the bill for amendments in early May.

Although most Republicans remain opposed to and are even seen to derail the passage of the bill when it reaches the House, a growing number of GOP members can no longer deny the need for immigration reform. One major group is comprised of Republican House members whose districts heavily rely on agriculture. They support the bill as it provides a workable guest worker program which addresses their chronic problem of worker shortages. Data shows that 17 of the top 20 farm districts are represented by Republicans.

Also, the bipartisan group of House members who themselves have been working on their own version of an immigration reform bill applauded the ‘Gang of Eight’ for its progress. They have also committed to continue on working on their version and are willing to reach a compromise.

If the bipartisan efforts of these members of Congress, both Senate and House, are any indication of the fate of the immigration reform bill, not to mention the growing support from the American public, a comprehensive immigration reform law may very well be in place before the year ends.

Romney if Elected Will Honor DACA Approvals but End Program

More than 4,500 young undocumented immigrants have been approved under President Obama’s deferred action for childhood arrivals (DACA) program as of October 10, 2012. Nearly 180,000 requests have been accepted by the USCIS for processing and more than 6,000 cases are under review.

The number of filings and approvals has jumped from last month when the agency released an update. During the program’s first month, only 82,000 requests were filed and a mere 29 cases completed.

But these numbers could still spike in the next few weeks after a recent announcement by Republican presidential candidate Mitt Romney.

Mr. Romney has said that he would not cancel the two-year deferrals given to young immigrants although he plans to replace it with a more permanent solution. He had been ambiguous about his stance on the DACA program but was expected by many to put an end to it if elected in office.

This development should prompt DACA-eligible individuals who are still on the fence to submit their requests right away.

Many young immigrants, or DREAMers as they are often referred to, are holding back and waiting for the results of the November 6 elections. Because there is no deadline for filing, a lot of them have chosen to “wait and see” before applying because they do not want to be at a higher risk of deportation in case the program is not continued.

Mr. Romney declared that while he will honor the two-year deportation reprieve, he will replace the program with his own. He proposes a long-term solution to the country’s immigration problem and promises that before the approvals expire, there would be a comprehensive immigration reform plan already in place.

Mr. Romney has not clarified the specifics of his immigration reform plan but he has expressed support for legislation that would give permanent resident status to undocumented immigrants who serve in the military. Unless Mr. Romney has a change of heart, proof of student status just like in President Obama’s policy would not be enough to make DREAMers eligible for the relief.

So far, therefore, it appears that under the Romney version, many of the 1.76 million childhood arrivals otherwise eligible under President Obama’s program might not qualify for relief, unless they serve in the military.

Interestingly, in clarifying his position on DACA Mr. Romney inaccurately referred to the reprieve and the accompanying work permit as a visa. He remarked that the “two-year visa” would continue to be valid and that he was not going to take something that the young immigrants had “purchased”, most likely referring to the $465 filing fee for the deferred action request. The USCIS, immigration lawyers and various organizations have tried to make it clear that the DACA program does not grant any visa or any lawful status.

It is difficult to predict if a request filed today would be completed by January 20, 2013 when the next presidential term begins, given the processing time and the huge increase in the filings in the last month. In addition, a recent information request cloaked as a demand for transparency from two Republican lawmakers to the Department of Homeland Security might have the effect of slowing down adjudications.

Still, as the saying goes, a bird in the hand is worth two in the bush. A reprieve from deportation, even if for only two years, is better than nothing. Mr. Romney has not outlined what his long-term solution is made up of. And four years ago a presidential candidate also vowed to pass comprehensive immigration reform but failed to do so with the deadlock in the bipartisan Congress.

Aged-Out Beneficiaries Win in Latest CSPA Ruling

Thousands of aged-out children will no longer have to wait at the back of the line for a green card. That is, if the government relents and concedes that it had been wrongly and unfairly interpreting the law for a long time.

In a recent ruling that will have far-reaching consequences, the Ninth Circuit Court of Appeals held that derivative beneficiaries of all types of family petitions could retain the priority date of the original petition filed on behalf of their parents.

This is the latest in a legal saga that revolves around a key provision of the Child Status Protection Act.

The CSPA calculates a child’s age using a formula which takes into account the government’s delays in processing a visa petition. If even after the age-reducing computation, a child’s age is still 21 or over, Section 1153(h)(3) still preserves the aged-out child’s chances for a green card by allowing the petition to be automatically converted to the appropriate category. It also allows the child to retain the original priority date.

This way, aged-out children get credit for the years or even decades that they and their parents waited to reach the front of the line for an immigrant visa.

But the USCIS has interpreted this provision narrowly and said that automatic conversion and priority date retention did not apply to derivative beneficiaries of F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens) petitions.

The plaintiffs in the case De Osorio v. Mayorkas were derivative beneficiaries of F3 and F4 visa petitions. One of the plaintiffs, Cuellar de Osorio, was the primary beneficiary of an F3 petition filed by her U.S. citizen mother with a priority date of May 1998. Her son at the time was 13 years old. When a visa became available in November 2005, her son had aged out and became ineligible for an immigrant visa. After she immigrated to the U.S., she filed an F2B (unmarried son or daughter of permanent resident) petition for her son in August 2006 and requested that he retain the 1998 priority date. The USCIS denied her request.

Plaintiff Costelo was also the beneficiary of an F3 petition filed by her U.S. citizen mother in 1990. Her daughters had aged out when the priority date became current in 2004. She filed F2B petitions for her daughters and requested retention of the 1990 priority date.

Plaintiff Ong was the beneficiary of an F4 petition by his U.S. citizen sister in 1981. His daughters, who were 2 and 4 years old at the time of the petition, had aged out when a visa became available in 2002. In 2005, Ong filed F2B petitions for them and requested retention of the 1981 priority date. The USCIS did not respond to Ong’s and Costelo’s requests.

While this case was pending with a district court in California several years ago, the Board of Immigration Appeals issued a restrictive interpretation of Section 1153(h). It said that only subsequent visa petitions that do not require a new petitioner may convert automatically to a new category and retain the original petition’s priority date. This meant that automatic conversion and priority date retention were available only to derivatives of F2A (spouse and children of permanent resident) petitions.

The district court thus ruled against the aged-out children, prompting them to file an appeal with the Ninth Circuit Court of Appeals. A three-judge panel of the appeals court deferred to the strict interpretation of the BIA.

But on rehearing, the Ninth Circuit en banc handed victory to the aged-out children. It found that based on the plain language of the law, automatic conversion and priority date retention applied to all family-sponsored derivative beneficiaries. It therefore rejected the unfair reading given by the government.

The story, however, may still be far from over as the government can file an appeal with the U.S. Supreme Court. If the government persists despite this most recent refutation of its interpretation, thousands of families will continue to be separated for many years during the wait for an immigrant visa.

Lawsuit by ICE Agents is Latest in Anti-Immigrant Attacks

Only two weeks into the implementation of the deferred action program and amidst a spate of anti-immigrant attacks against it, a group of immigration officers has filed a lawsuit challenging the policy as unconstitutional.

The plaintiffs in Crane v. Napolitano are Immigration and Customs Enforcement agents who claim that the recent directives of the Department of Homeland Security command them to violate federal law and are a usurpation of the legislative power of Congress.

They challenge in particular the June 15, 2012 memo of Sec. Janet Napolitano on deferred action for childhood arrivals and the June 17, 2011 Morton Memorandum establishing enforcement priorities, which they had complained of earlier. The agents say that they are forced to violate their oaths of office and several laws, or be disciplined for doing their job if they follow federal law and disregard the directives.

In effect, they disagree with the President’s policy to deport criminals first before students and individuals who were brought into the U.S. as young children, so much so that they refuse to be bound by the policy and have chosen to bring this difference of opinion to the court.

Many legal observers believe that the lawsuit has no merit and that it would be dismissed on jurisdictional grounds.

The group’s legal costs are shouldered by the anti-immigrant organization NumbersUSA. The agents’ lawyer is Kris Kobach, whose name may sound familiar because he authored the infamous Arizona immigration law SB1070. He also advises GOP presidential candidate Mitt Romney on immigration.

One of the claims made by the employees is that federal law does not authorize deferred action, much less the granting of this benefit to 1.7 million potential beneficiaries.

But deferred action is not new. Widows of U.S. citizens have received deferred action from the USCIS, as do women who have suffered physical and mental abuse because of rape and domestic violence who are applying for a U visa. Foreign students who were affected when Hurricane Katrina hit the U.S. were able to get deferred action. Deferred action is also a form of relief that is available in removal proceedings, whereby the DHS agrees not to deport an alien or not to execute a removal order.

I myself have in the past helped obtain deferred departure status for hundreds of nurses who would otherwise have been deported because they failed their licensure exams or changed employers without authorization. The INS agreed to give them deferred departure status for a maximum of 3 years. Many of these nurses eventually regained lawful status.

This present lawsuit is just the latest onslaught against the program that grants reprieve from deportation to deserving individuals who are in the U.S. through no fault of their own. On the same day that the USCIS began accepting deferred action requests, the governor of Arizona issued an executive order denying state benefits, including driver’s licenses, from deferred action beneficiaries. Nebraska’s governor quickly followed suit and announced that his state would also deny driver’s licenses, welfare benefits and other public assistance to DREAMErs.

Elsewhere, there are reasons for DREAMers to remain optimistic. In New York, for instance, a lawmaker has introduced a bill that would give undocumented youth access to government financial aid for college. A Colorado university has started to charge a reduced tuition fee for eligible undocumented students. A federal court also recently blocked key parts of immigration laws of Alabama and Georgia.

Scroll To Top