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Deportation Deferral Memo (Part 2 of 2)

Posted by Matthew Green | Nov 25, 2014 | 0 Comments

In conjunction with President Barack Obama's announcement of executive action on immigration reform, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memorandum to reflect the president's immigration policy changes.  That memorandum provides for an amendment to the policy for deferred action for childhood arrivals (DACA).  The following is a summary of the homeland security memo.

Because of the government's limited resources, immigration officials cannot act on every immigration violation, or remove all persons who are in the U.S. illegally.  For this reason, the president is invoking prosecutorial discretion to enforce immigration laws in a sensible manner.  The November 20, 2014 memorandum is a supplement and amendment to former Secretary Janet Napolitano's June 15, 2012 guidance memo entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. Essentially, the memo provides for an expansion of the DACA program.

Deferred action, also known as “indefinite voluntary departure,” is a form of prosecutorial discretion by which the Secretary of Homeland Security can deprioritize individual deportation cases for humanitarian reasons, administrative convenience, or in the overall interest of DHS's enforcement mission.  Prosecutorial discretion as it relates to deportation deferral has been used in the past, by both President Ronald Reagan and President George H. W. Bush.

Deferred action is a limited form of relief.  It does not confer legal status or citizenship on an individual, and can be terminated at the discretion of DHS.  It does not itself lead to a green card.  Deferred action will only provide that, for a specified period of time, an individual will be permitted to be lawfully present in the United States.

Under the deferred action memorandum, DACA has been expanded to include a broader group of individuals beyond the childhood arrivals. It will apply to those who are not otherwise “enforcement priorities” under the new memorandum for apprehension, detention and removal of undocumented immigrants, generally those who have committed more serious crimes.

The basis for expanding the parameters of DACA is to offer some relief for people with ties to the U.S., who have become integrated members of society, and who have not committed serious crimes.  This will enable those individuals to “come out of the shadows”, submit to background checks, pay fees, and apply for work authorization.  Based on this justification, DHS will shift their priorities to enforcing deportation for those who threaten national security, public safety, and border security.

Additionally, as of the date of the announcement, the U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and USCIS, are to identify individuals they encounter, or are in their custody, for eligibility under this criteria.  ICE is to close or terminate removal cases for those who meet this criteria.

The ultimate decision on whether to grant an immigrant with deportation deferral will be determined on a case-by-case basis.  The memo also clarifies that deferral offers no pathway to citizenship, or substantive immigration status.  The policy change is an exercise of prosecutorial discretion and deferred action under the authority of the Executive Branch.  Only an Act of Congress can provide a pathway to citizenship or change to the substantive rights or immigration status of individuals.  At this time, there are no planned congressional immigration acts forthcoming.

The full deportation deferral memo can be found here.

About the Author

Matthew Green

Managing Partner. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...


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