Thursday, June 28, 2012

What is Deferred Action under new DHS Directive of June 15 2012?

What is Deferred Action under new DHS Directive of June 15 2012?
If this is affirmative deferred action, similar to Temporary Protected Status or TPS (without armed conflicts and earthquakes) it should be handled by USCIS. However, there isn't a provision in the INA that would support this. If this is PD though ICE, we’re dealing with the discretion not to issue a Notice to Appear.

How is Prosecutorial Discretion Defined?
“Prosecutorial discretion” is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. DHS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also to a broad range of other discretionary enforcement decisions, including among others: Focusing investigative resources on particular offenses or conduct; deciding whom to stop, question, and arrest; maintaining an alien in custody; seeking expedited removal or other forms of removal by means other than a removal proceeding; settling or dismissing a proceeding; granting deferred action or staying a final order; agreeing to voluntary departure, withdrawal of an application for admission, or other action in lieu of removing the alien; pursuing an appeal; and executing a removal order.

What is Favorable Discretion?
The “favorable exercise of prosecutorial discretion” means a discretionary decision not to assert the full scope of the DHS’ enforcement authority as permitted under the law. Such decisions will take different forms, depending on the status of a particular matter, but include decisions such as not issuing an NTA (discussed in more detail below under “Initiating Proceedings”), not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirements), and approving deferred action.
As a law enforcement agency, DHS generally has prosecutorial discretion within its area of law enforcement responsibility unless that discretion has been clearly limited by statute in a way that goes beyond standard terminology.

Does Prosecutorial Discretion grant status?
It is important to recognize not only what prosecutorial discretion is, but also what it is not. Prosecutorial discretion does not apply to affirmative acts of approval, or grants of benefits, under a statute or other applicable law that provides requirements for determining when the approval should be given. For example, the DHS has prosecutorial discretion not to place a removable alien in proceedings, but it does not have prosecutorial discretion to approve a naturalization application by an alien who is ineligible for that benefit under the INA.

This distinction is not always an easy to understand. In many cases, DHS decision making involves both a prosecutorial decision to take or not to take enforcement action, such as placing an alien in removal proceedings, and a decision whether or not the alien is eligible for a benefit under the INA. In many cases, benefit decisions involve the exercise of significant discretion which in most cases is not judicially reviewable.

What is the New Policy of June 15, 2012?
The Deferred Action policy of June 15, 2012 is based on previous policies, discussed above and should not be confused with a grant of status, amnesty, a benefit under the INA or otherwise protected status. It merely creates a class of people who the Administration believes should not be issued a Notice to Appear and be put in removal proceedings. And as such, the Administration feels that these people might as well apply for a work permit, as long as the deferred action policy is in effect.

Who qualifies?
Under the directive issued on June 15, 2012, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  • Came 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 are present in the United States on the date of this memorandum;
  • Are currently 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; 
  • 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; 
  • Are not above the age of thirty.

Many misconceptions about the new policy have already been floating around. This is not an Executive Decision, this is not Amnesty, this is not a pathway to citizenship, this is not the Administration going around Congress, this is not an unconstitutional act. This is merely an enforcement directive, option not to issue an NTA to certain individuals and have these individuals apply for a work permit, while the directive is in effect, which appears to be for a period of two years.

Prosecutorial Discretion Memo HQOPP 50/4, Published Nov. 17, 2000;
Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X;
Principles of Federal Prosecution, chapter 9-27.000 in the U.S. Department of Justice’s United States Attorneys’ Manual (Oct. 1997).

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