Twenty-two U.S. Democratic senators recently wrote a letter to President Obama asking him to take executive action in light of the DREAM Act’s failure in the Senate four months ago.
The Senators, headed by Majority Leader Harry Reid of Nevada, urged the President to defer immigration enforcement proceedings for students who may benefit from the DREAM Act. Under the proposal, these students must meet requirements necessary to be eligible for cancellation of removal or a stay of removal under the DREAM Act.
The letter, dated April 13, 2011, reminded the President that he may exercise prosecutorial discretion in light of the government’s law enforcement priorities and limited resources. The Senators also noted that both the Bush and Obama administrations have granted deferred action to a number of students on a case-by-case basis.
In asking for deferred action for eligible students, the Senators called the President out on his position at his last State of the Union Address, where he asked Congress to “stop expelling talented, responsible people … who could be further enriching this nation”.
The senators said that they would also support other measures short of granting deferred action on all DREAM Act students, such as establishing a formal process for applying for deferred action, creating a reporting and tracking mechanism for DREAM Act cases, and granting deferred action as early as possible in each individual case.
It may be remembered that last year, the House of Representatives passed the DREAM Act (less commonly known as the Development, Relief, and Education for Alien Minors Act). It garnered the majority support of 55 votes at the Senate but was unsuccessful in overcoming a Republican filibuster.
Deferred action is a type of relief granted in the exercise of prosecutorial discretion not to pursue the removal or deportation of an alien for a specific period of time. It is a purely administrative act which may not be reviewed by courts.
While it does not confer immigration status, deferred action prevents the immigration authorities from seeking removal during the period of effectivity and makes the alien eligible for work authorization.
The USCIS grants deferred action on a case-by-case basis. Years ago, I was involved as an attorney in securing deferred departure status for hundreds of nurses – most of them from the Philippines – who were facing deportation for failing their licensure exams or changing employers without authorization. After several meetings with the INS Commissioner and other top INS officials, we obtained an agreement giving the nurses deferred departure status in 6-month increments up to a maximum of 3 years, and they were restored to lawful status after passing their licensure exams.
The USCIS has allowed deferred action for Haitian earthquake victims and foreign academic students impacted by Hurricane Katrina. It also grants deferred action in U visa cases which involve substantial physical or mental abuse.
It is estimated that 65,000 undocumented students finish high school each year. However, because they lack immigration status, many of these students are not able to attend college, and even when they do, they are unable to find work after graduation. The DREAM Act aims to address their plight by giving them a path to permanent resident status.
Passage of the DREAM Act by Congress is the humanitarian response to the hardship faced by these blameless immigrant students. Failing that and in the interim, deferred action by the Obama administration is a commendable alternative.