Obama Deferment Is Still Discretionary

ON JUNE 15, 2011, the Obama Administration announced that it will grant deferments of removal and stop deporting certain young illegal immigrants who entered the United States as children. This policy defers removal for young illegal immigrants, but does not provide a pathway to citizenship or permanent residency. Under the new policy, the Department of Homeland Security will exercise prosecutorial discretion when determining whether or not to pursue removal against young immigrants based on certain criteria.

As announced in a memo by the Secretary of Homeland Security, Janet Napolitano, the requirements before discretion may be exercised include the following:

The individual came to the US before age sixteen;

Resided continuously in the US for at least five years preceding June 15, 2012 and was present in the US on that date;

Currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the US;

No conviction of a felony offense, a significant misdemeanor offenses, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; Not over the age of thirty.

All individuals who seek this deferment must first pass a background check and requests will be decided on a case by case basis. Not everyone who meets the criteria will automatically receive deferment of removal, as it is still discretionary.

As described by President Obama and the corresponding memorandum, this new policy is based on the administration’s desire to enforce the nation’s immigration laws in a strong and sensible manner by ensuring that enforcement resources are not expended on low priority cases. This policy is in line with the administration’s efforts to focus on removing those with serious or multiple criminal convictions or are a danger to national security, or a risk to public safety.

This newly announced policy allows a reprieve for children who were brought to the US at a young age when they lacked the intent to violate the law. Many of the individuals who will benefit from the new policy have lived in the US for the majority of their lives and have no connection to their birth countries and don’t even speak the language; many have already contributed to the US.

It is estimated that some 800,000 individuals will benefit from this new policy. Those who are granted deferment may also apply for work authorization during the deferred period. This new policy is effective immediately.

The above information is given for informational purposes only and should not be taken as legal advice. Please consult with an attorney to discuss the particulars of your own case. Stephen Ure can be contacted at (619) 235-5400, or email: ure@prodigy.net

This article was first published in July 2012