President Obama’s November 20, 2014 Executive Order made various changes to the current immigration laws. The changes that affect a majority of undocumented immigrants are:

• Expansion of the Deferred Action for Childhood Arrivals (“DACA”) program;
• Creation of the Deferred Action for Parental Accountability (“DAPA”) program; and
• Replacement of the Department of Homeland Security’s (“DHS”) “Secure Communities” program with a new program called the “Priority Enforcement Program.”

Given the misconceptions that are going around about the reform, it is important to note that:

• The changes do not provide undocumented immigrants with a path to citizenship or legal permanent residency (commonly known as a “green card”);
• The changes will not allow undocumented immigrants to access public benefits programs such as welfare;
• The changes do not provide undocumented immigrants permanent stays in the country; they only provide temporary, three (3) year periods of deferment of removal (i.e., deportation), and
• The changes do not constitute entitlements for undocumented immigrants – applications are determined on a case-by-case basis and can be denied.

Prosecutorial Discretion and Deferred Action

DHS has limited resources and is unable to respond to all immigration violations or remove all people here illegally. Therefore, DHS has always used prosecutorial discretion in its enforcement of the immigration laws.

Deferred action is a type of prosecutorial discretion. Deferred action de-prioritizes the enforcement of certain immigration laws for humanitarian reasons, administrative convenience, and in the interest of the DHS’s overall enforcement mission. In the past, deferred action has been granted on a case-by-case basis, has never conferred citizenship or legal permanent residency, and simply defers removal (formally known as “deportation”) for a specific amount of time.

Expansion of DACA

A form of DACA has existed since the year 2012. The criteria for the former DACA program were that:

• you had to have entered the United States prior to June 15, 2007,
• entered as a child under the age of 16,
• you had to have been under the age of 31 on June 15, 2012 (i.e., not born prior to June 15, 1981),
• you had to have met specific educational criteria, and
• you had to have met specific public safety criteria.

If you met the above criteria, you were eligible for DACA. If you ultimately received DACA approval, you were provided deferred action for two (2) years with possibility of renewal every two (2) years.

Pursuant to the President’s November 20th Executive Order, the following changes have been made to the DACA program:

• There is no longer an age cap (i.e., you don’t have to be 31 years of age as of June 15, 2012; if you entered as a child under the age of 16 before the date set by the new regulations, you may apply for DACA).
• The date of entry has been moved up to January 1, 2010 instead of June 15, 2007 (i.e., those that entered on or before Jan 1, 2010 may qualify for DACA).
• The DACA program is extended to three (3) year increments instead of two (2) year increments (with possibility of renewal every three (3) years).

The educational and public safety criteria still apply.

United States Citizenship and Immigration Services (“USCIS”) has been instructed by the Secretary of DHS to begin accepting applications for the expanded DACA program no later than February 18, 2015.

Creation of the DAPA Program

The following undocumented immigrants may qualify for the DAPA program:

• adults over the age of 16,
• that have been in the United States since January 1, 2010,
• who are parents of United States citizens or legal permanent residents born on or prior to November 20, 2014,
• who are not enforcement priorities (i.e., there is no reason to believe that they are a threat to public security, public safety or border security), and
• who are physically present in the United States on Nov 20, 2014, and at the time that they file their applications.

After successfully completing a background check, those that are approved will be given three (3) years’ temporary deferment of removal, will obtain work authorization documents (after paying a fee), and will be able to apply for a driver’s license (passing driver’s exam and paying all required DMV fees will still be required).

USCIS has been instructed by DHS to begin accepting applications for the DAPA program no later than May 19, 2015.

Priority Enforcement Program

The President’s November 20th Executive Order replaces the current “Secure Communities” program with a new program entitled “Priority Enforcement Program” (the “Program”) to begin on Jan 5, 2015. The Program encourages that the government’s limited resources be devoted to pursuing enforcement priorities, i.e., people that pose a threat to national security, border security, and public safety.

The Program outlines the types of convictions for which Immigration Customs and Enforcement (“ICE”) will seek transfer of undocumented immigrants to federal detention from state and local law enforcement. The Program’s highest priority includes terrorists, gang members and convicted felons. The second priority includes those convicted of “significant” or multiple misdemeanor offenses. The lowest priority for which ICE will seek transfer of undocumented immigrants to federal custody from state or local law enforcement are those that are already subject to final orders of removal.

In other words, those who have entered the country illegally but who never disobeyed an order of removal and were never convicted of a serious offense, will not be a priority for removal under the Program.

It should be noted that ICE may still seek to remove undocumented immigrants that are not in the above mentioned priority lists if doing so “would serve an important federal interest.”

The Secretary of DHS has instructed ICE and Customs and Border Patrol (“CBP”) to identify people currently in custody or in removal proceedings who may qualify for expanded DACA or for the new DAPA program, or that no longer represent enforcement priorities.

In addition, the Program replaces ICE’s former controversial “requests for detentions” with “requests for notifications” to state and local law enforcement agencies. Requests for notification ask that state and local law enforcement agencies notify ICE of a pending release; ICE will no longer request that state and local law enforcement hold individuals past the point where they would normally be released. Moreover, responding to a “request for notification” will be voluntary. This change was included to address the Fourth Amendment issues that arose when state and local law enforcement agencies were, for example, holding criminal defendants past their sentencing release dates (or the dates that they would normally be released) while ICE considered whether to bring removal proceedings or not. It should be noted that under the new guidelines, ICE may still issue requests for detention in special limited circumstances, such as where the person is subject to a final order of removal or where there is probable cause that the person is removable.

Conclusion

The President’s November 20, 2014 Executive Order is definitely a step in the right direction. It has the potential of keeping thousands of families together by its promise to focus law enforcement resources on undocumented immigrants that actually pose a threat to our safety. It also promises to allow thousands of hard working, law abiding individuals to participate and contribute more fully to our society and economy. It will be interesting to see whether the intent of the immigration reform will come to fruition given the current political majority in Congress. Only time will tell.

If you would like to know if you qualify for either the expanded DACA or new DAPA programs, or if you would like to be notified when the expanded DACA or DAPA applications become available, please call our office at 845-778-2121. We will be providing courtesy phone notifications at no charge to our clients and prospective clients when the expanded DACA and DAPA applications become available.

Notes:

i. The DACA educational criteria were, and still are, that the applicant must be in school or have graduated or obtained a certificate of completion from a high school, or obtained a GED, or be an honorably discharged veteran of the United States Armed Forces or Coast Guard.

ii. The DACA public safety criteria were, and still are, that an applicant may not have prior felony convictions, prior “significant” misdemeanor convictions, three or more misdemeanor convictions, or be a threat to national security or public safety.

Sources:

• Memorandum, Jeh Charles Johnson, Secretary, Department of Homeland Security to U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection, November 20, 2014, “Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children and with Respect to Certain Individuals whose Parents are U.S. Citizens or Permanent Residents.”
• Memorandum, Jeh Charles Johnson, Secretary, Department of Homeland Security to U.S. Citizenship and Immigration Services, November 20, 2014, “Expansion of the Provisional Waiver Program.”
• Memorandum, Jeh Charles Johnson, Secretary, Department of Homeland Security to U.S. Immigration and Customs Enforcement, Office of Civil Rights and Civil Liberties, and Assistant Secretary for Intergovernmental Affairs, November 20, 2014, “Secure Communities.”
• Memorandum, Jeh Charles Johnson, Secretary, Department of Homeland Security to U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, and Acting Assistant Secretary for Policy, November 20, 2014, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.”
• Bulletin, N.Y. Attorney General Eric T. Schneiderman, December 2, 2014, “Guidance to Law Enforcement Agencies on Termination of Secure Communities Program.”