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< Back to current issue of Immigration Daily

Bloggings on Deportation and Removal

by Matthew Kolken

Talking Points on Why Deferred Action is NOT Amnesty

If you find yourself being interviwed by any media source feel free to use the following talking points to answer the inevitable claims that Deferred Action for Childhood Arrivals is amnesty.

1. Contrary to the misinformation being spewed all over the media, President Obama has NOT issued an executive order.  DHS Secretary Napolitano has issued a nonbinding policy directive that does not have the full force of law, and may be ignored by adjudicating officers at their election.

If past results are any indicator there is not much to be optimistic about.  The last policy memorandum issued by John Morton only resulted in a favorable exercise of prosecutorial discretion in 1.9% of all reviewed cases.  We have absolutely no idea at this point how the new memo will be implemented. As such, there clearly is no guarantee that just because a deferred action application is submitted that discretion will be favorably exercised.

2. The deferred action initiative is temporary (two-years), and may be cancelled at any time for any reason, or for no reason.

3. We have no idea how long it will take for the current administration to issue decisions.  It is assumed that at a minimum it will take months, and decisions may not be issued until after the November election.   If denials come pouring in after the election there is little likelihood that the program will be renewed even if Obama wins.

4. Despite official statements to the contrary, there is no guarantee that the biographical information being provided on applications won't be used at some point in the future as a basis to institute removal proceedings. Given the current administration's approximately 1.5 million deportations in 3.5 years, I tend to be cautiously pessimistic.

5. If prosecutorial discretion IS favorably exercised applicants are NOT guaranteed to receive a work permit.  To receive one you must establish economic necessity for employment.  Who knows how that will be interpreted. The work permit will presumably be valid for two years, and must be renewed.  As stated above there is no way of knowing if subsequent permits will be issued.

6. If prosecutorial discretion is denied you have no right to due process to seek an appeal of the denial.  As stated above denials may be completely arbitrary and without justification, and there is nothing an applicant can do about it.

7. True immigration reform may only be accomplished through an act of Congress so we must continue to fight for reform. Our mission has NOT been accomplished.  

So there you have it.  If you hear someone claim that Obama has created an illegal amnesty through executive order you are now armed with a response.

Good luck!


About The Author

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).


The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.


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