• June 26, 2012

A post from new Minnesota Litigator contributing poster, immigration lawyer, Mikael Merrissa, with his perspective on President Obama’s recent executive order related to federal immigration policy:

Earlier this month, President Obama issued an executive order putting a stop to the deportation of young illegal immigrants who entered the United States as children. This change in immigration policy, which the President called an exercise of prosecutorial discretion by the Department of Homeland Security, is estimated to effect up to 800,000 young undocumented immigrants living in the United States.  The news coverage of the announcement has ranged from a shrug to elation to consternation.

But what is the more deeply informed insider perspective?

As a practical matter, the President’s announcement, technically called deferred action, has limited reach and application.  First, it covers only those persons who entered the United States before the age of 16 and are currently under the age of 30.  Second, the applicant has to have entered the United States five years before the program was announced or June 15, 2007. Third, it requires the completion of high school or its equivalent, such as a GED, or an honorable discharge from the United States Military.  Fourth, the applicant can have no criminal record, not even a misdemeanor.  Finally, it lasts for two years at which time the applicant must reapply. Therefore, it is not the permanent status or a path to citizenship promised by the Dream Act, which died in the senate last year.

More importantly, the real calculus when considering deferred action is whether to apply for it affirmatively or defensively.  If an immigrant makes an affirmative application, the immigrant must come out of the proverbial “shadows.” If the application is denied for whatever reason, the government now knows that the applicant is here illegally, knows where he or she lives and works and can commence removal proceedings. However, if an immigrant applies for deferred action defensively while in removal proceedings, then the immigration court will ostensibly terminate removal proceedings for the qualified applicant.  Of course, it is possible that the Department of Homeland Security could recommence those proceedings in two years, perhaps under a Romney administration.

There is no way to estimate how many young Minnesota immigrants are affected. But I have one client in particular who would be the perfect candidate. He is an excellent student and superior athlete—an all-American, if you will.  He came to the United States when he was a four years old.  He is now twenty one.  He has a United States citizen sister and an undocumented mother.  He considers himself American in all aspects and at first blush appears to meet all of the qualifications of the new deferred action program. Yet given Mitt Romney’s refusal to take a position on whether he would reverse this policy if elected, it may be best for my client to stay in the shadows until November 6 or beyond before outing himself.

So here is the take-away.  This announcement is perhaps good politics but not so great policy.  It will undoubtedly create an influx of applications as desperate families stitch together patchwork quilt of legislation to stay together.  However, because its short duration it will not help clear the backlogs of the immigration courts or the Immigration Service anytime soon and may in fact increase it.

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