By now you've probably heard about the big announcement coming from the Obama administration that they intend to exercise prosecutorial discretion on behalf of DREAMers.
The most recent memorandum is dated today (June 15, 2012), and can be read in its entirety here.
Here are the criteria for consideration:
The individual must have:
• Come to the United States under the age of sixteen;
• Have continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
• Are currently in school, has graduated from high school, have obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• Are not above the age of thirty.
The memorandum addresses situations where a DREAMer is in deportation proceedings, and further promises work authorization on a case by case basis.
The announcement unsurprisingly comes at the heels of the most recent Time magazine cover story that tells the story of being undocumented America.
What I find most transparently troubling about the timing of this recent "policy shift" is that President Obama has spent the last 3.5 years saying that he is powerless to stop the deportation of approximately 1.5 million people. With the release of a single article in an election year all of that changed in an instant.
The press is already billing the new memo as amnesty. To this I say pffft.
Check the fine print and you will see that it confers no substantive right, immigration status or pathway to citizenship, and appears strikingly similar to last year's Morton memorandum that only resulted in about 2,000 cases being administratively closed.
Moreover, whenever I hear the dreaded buzz words "case by case basis" I get a little queasy.
According to a just released Q&A here is how this memo is supposed to be implemented:
Individuals who are not in removal proceedings or who are subject to a final order of removal will need to submit a request for a review of their case and supporting evidence to U.S. Citizenship and Immigration Services (USCIS). Individuals may request deferred action if they meet the eligibility criteria. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process.
This process is not yet in effect and requests should not be submitted at this time.
That is one seriously big 'if'. Kinda like when the Obama administration excluded "criminal aliens" from Morton memo eligibility by defining "criminal" to include people that have never committed a crime.
I REALLY hope that I'm wrong about all of this, but as the saying goes: "Fool me once, shame on you. Fool me twice, shame on me."
Needless to say I'm taking a wait and see approach.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).