Several months ago, the Secretary of Homeland Security, Ms. Janet Napalitano, issued a memorandum directing various agency heads within her department to exercise “prosecutorial discretion” when it comes to the case of the Dreamers. Under this new policy, children who came to the United States before the age of 16 and satisfy certain eligibility requirements should be offered “deferred action” and not removed from the country. The thinking behind this decision is based on both efficient use of federal resources and humanitarian concerns.
Background
Immigration is a very charged political topic. While it is generally recognized that there are over 11 million people that are undocumented within the United States, there is little agreement as to what should be done with them. Advocates for enforcement of already existing immigration laws are of the opinion that illegal behavior should not be rewarded. For such advocates, this means that undocumented immigrants who either came into the country without authorization, or stayed beyond the period of their lawful stay should be deported or forcibly removed. However, on the other side of the fence are those who recognize the practical difficulty of seizing 11 million people and shipping all of them out of the country because they broke the law. Generally, such advocates think there should be a mechanism to make these illegal immigrants stay in the country possibly by creating a pathway to citizenship because it is nearly impossible to deport all these individuals.
Though there is disagreement as to what to do with 11 million people, there is little disagreement when it comes to the status of people who were brought into the country as children through no fault of theirs. In certain cases, such children have known the United States as the only country to which they have a connection and have lived in their various communities as if they were native born. Sometimes, these children do not even know anything about their illegal status until a life-changing event happens, such as when they have to apply to college after graduation from high school and it becomes difficult for them to provide the necessary documents that show their legal status in the country.
Regardless of political beliefs and affiliation, it is generally believed that children should not be punished for the sins of their parents. However, even when it comes to these children, it has not been easy to reach the necessary compromise that would grant lawful status to them. The Congress has tried but failed multiple times to pass the DREAM Act that would grant lawful permanent status to these children. After the Congress failed again at the end of 2011 to pass this bill when most people thought the time was ripe for its passage, President Obama in June 2012 took matters into his own hands and announced a new policy shift by the Department of Homeland Security concerning how immigration laws would be enforced at least when it came to the case of the Dreamers.
New Policy
According to Secretary Napalitano’s memorandum on the new policy concerning Dreamers, the federal government would exercise “prosecutorial discretion” in the efficient use of federal resources to enforce the country’s immigration laws. This means that federal efforts would not be focused on low priority cases such as the Dreamers. In so doing, these Dreamers can apply for reprieve from deportation or removal proceedings if they satisfy the following requirements:
The individual
· should have come to the United States before turning 16;
· has lived in the United States continuously for the past 5 years at least prior to June 15, 2007;
· is in school, is a high school graduate, has a GED, or has been honorably discharged from the Coast Guard or the military;
· has no conviction of felony, significant misdemeanor offense, three or more misdemeanor offenses, or a threat to the safety of the public or security of the nation; and
· is not above 30 years of age.
Implications
This new policy by the Department of Homeland Security is welcome news for Dreamers and comes with important benefits that they can use to their advantage. Dreamers can come out of the shadows and apply for Temporary Protected Status (TPS) that can be renewed every two years without fear of deportation. In addition, on demonstration of economic need, they may apply for and could be granted work permits that make them eligible to accept lawful employment.
Unfortunately, TPS does not change the undocumented status of Dreamers into lawful permanent residents nor create a citizenship pathway for them. As the Secretary’s memo indicates, only Congress can make such changes based on its legislative authority. It remains to be seen whether going forward, the politics of the immigration question has changed to enable a comprehensive immigration bill to be passed by the Congress, or Congress may craft a narrow bill that focuses on solving the unique problem posed by Dreamers.
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