On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a memorandum setting forth how the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children. Those who demonstrate they meet certain criteria are eligible to receive deferred action.
Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion.
Pursuant to the memorandum, in order to be eligible for deferred action, individuals must:
- Have come to the U.S. under the age of sixteen.
- Have continuously resided in the U.S. for at least 5 years preceding June 15, 2012 and are present in the U.S. on June 15, 2012.
- Currently be in school, have graduated from high school, have obtained a GED, or are honorably discharged veterans of the Coast Guard or Armed Forces of the U.S.
- 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.
- Not be above the age of thirty.
- Complete a background check and, for those individuals who make a request to U.S. Citizenship and Immigration Service (USCIS) and are not subject to a final order of removal, must be 15 years old or older.
Length of Deferral Period
Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case.
Denied Requests for Deferred Action
For individuals whose requests for deferred action are denied by USCIS, USCIS will apply its existing Notice to Appear guidance governing USCIS’s referral of cases to ICE and issuance of notices to appear. Under this guidance, individuals whose requests are denied under this process will be referred to ICE if they have a criminal conviction or there is a finding of fraud in their request.
Possible Considerations for Applicants
There are aspects of the deferred action process that a prospective applicant should take into consideration. First, it is uncertain what happens to a person who is granted deferred action once the person turns 30. Second, relief pursuant to the memorandum are to be decided on a case by case basis and DHS cannot provide any assurance that relief will be granted in all cases. Third, the memorandum confers no substantive right, immigration status, permanent residence, or pathway to citizenship. The deferred action process was implemented by presidential decree, not by an act of Congress. Only Congress, acting through its legislative authority, can confer these rights. Should a new president be elected in the upcoming presidential election, the new president has the authority to veto this presidential decree.