This morning, the Department of Homeland Security announced that it intends to circumvent Congress and administratively implement the DREAM Act. The announcement came through an official policy memo, signed by Homeland Security Secretary Janet Napolitano, and a Homeland Security press release. In the announcement, Secretary Napolitano states that, effective immediately, the Obama Administration will move to stop deporting illegal aliens who qualify for the DREAM Act by granting these illegal aliens “deferred action.”
Deferred action status is what DHS grants when it decides, in its own discretion, not to remove an illegal alien. Those who receive deferred action usually also receive work authorization and DHS has confirmed that illegal aliens granted deferred action pursuant to the new policy memo (dated today, June 15, 2012) will be eligible for it. There is no statutory basis for deferred action status, as it is merely referred to in the federal regulations (See, e.g. USCIS Ombudsman memo, Apr. 6, 2007 (citing 8 C.F.R. 274a.12(c)(14))). Even more troubling, deferred action is not subject to judicial review. (Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484, 492 (1999))
Under the new policy, in order to be eligible for deferred action, an illegal alien must:
(1) Have come to the United States under the age of sixteen;
(2) Have continuously resided in the United States for at least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
(3) Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
(4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
(5) Not be above the age of thirty.
In addition, the illegal aliens must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older. While this new policy is effective immediately, Secretary Napolitano has directed U.S. Citizenship and Immigration Services (USCIS) to create an application process that will be fully operational within 60 days. DHS estimates that nearly 1 million illegal aliens will be given a reprieve through its new policy.
In a completely contradictory explanation, Secretary Napolitano insists that the decision to grant deferred action to illegal aliens will be done on a “case-by-case” basis, yet simultaneously outlines broad categories that determine eligibility. Moreover, to estimate at the outset that 1 million illegal aliens will benefit from this new policy is a clear indication that the Obama Administration intends to grant blanket relief to illegal aliens on its own initiative, completely circumventing Congress which has repeatedly rejected the DREAM Act over the past ten years. Perhaps even more appalling, Napolitano makes no excuse for this wholesale rejection of the rule of law and usurpation of Congressional authority. Instead, she states that our immigration laws are not to be “blindly enforced” and that “discretion is especially justified in these cases.”
President Obama is scheduled to speak on his Administration’s new immigration policy this afternoon. Stay tuned for updated information.