JURIST Guest Columnist Chris Schlag, University of Pittsburgh School of Law Class of 2014, is the president of the University of Pittsburgh School of Law’s chapter of the National Lawyers Guild and vice president of the University of Pittsburgh School of Law’s American Constitutional Society for Law and Policy. She discusses the current “deferred action policy” of the Obama administration towards minor illegal immigrants and argues for definitive legislation to address the complicated problem of minor illegal immigrants…

Negative connotations, deep emotions and imaginative preconceptions are directly attached to the term “immigrant.” When Americans hear the word immigrant they often picture an adult from a foreign country who knowingly and willingly entered the country illegally, and who illegally engages in the employment, educational and social spheres in this country. This assumption is often an inaccurate reflection of the complex reality that exists for the majority of immigrants in the US. Numerous immigrants come here legally, but then become illegal immigrants through a change in their immigration status.

There are countless stories of immigrants brought to the US as children who know no other home, but who are, in fact, present in the US illegally. The fate of these children, who through no fault of their own have been brought into a legal system that did not plan for them, has been an area of constant confusion. The complexities presented by illegal immigrants — who may have had little say in the choice to immigrate to the US, have never known their country of origin or would face significant hardship if forced to return to their country of origin — is inadequately addressed by current immigration laws. Since immigration issues are hardly adjudicated in a “black and white” manner, immigration law should be flexible enough to ensure all facets of the immigration equation have been assessed, including social need, social benefit, economic benefit, social responsibility and legal accountability.

Minor immigrants present in the US illegally have few options for obtaining relief from removal proceedings. Should an individual come forward to seek permanent residency, obtain a work permit or seek naturalization, they risk the possibility of deportation. Once deported for illegal entry or illegal presence in the US, such immigrants face exclusion from re-entry for a three to ten-year period — depending on the length of time they were present in the US illegally. In some situations, a minor immigrant can obtain asylum, amnesty or status as a special immigrant juvenile if they are at risk of abuse, abandonment, violence, neglect, torture or some other extenuating circumstance. However, many minor illegal immigrants do not meet the specified criteria for asylum or special juvenile status. Additionally, to obtain legal presence in the US many such immigrants would be required to leave the only home they know in order to wait in an unfamiliar country to obtain entry into the US through formal mechanisms.

Immigrants, families, legal aid workers, attorneys and politicians have been frustrated by the many inadequacies of current immigration law in addressing the specific needs of minor illegal immigrants. Numerous acts, including the Education for Alien Minors Act and variant forms of the Development, Relief, and Education for Alien Minors Act (DREAM Act), have been proposed as a means of reforming current immigration laws to address the needs of minor immigrants. The DREAM Act, in its most current form, would provide a way for juvenile immigrants seeking to further their education to obtain permanent residency and in some cases citizenship, if the juvenile met a specific set of criteria. However, the DREAM Act continues to be rejected by members of Congress under the main criticism that the Act would not only perpetuate illegal immigration but reward it.

In what was likely both a political maneuver and an act of frustration over being unable to effectuate comprehensive immigration reform through legislative initiatives like the DREAM Act, US President Barack Obama issued an executive directive [PDF] to the Department of Homeland Security (DHS) in June 2012 that requires the DHS to “exercise discretion” when evaluating immigrant cases involving minors. The President’s directive advises immigration officers to “liberally” use a “deferred action” status to provide juveniles with work permits instead of continuing with typical removal proceedings.

Under the deferred action policy, illegal immigrants who satisfy established criteria will be permitted to remain in the US on a conditional basis. To qualify for deferred action, an immigrant must: (1) be under the age of thirty; (2) have come to the US while under the age of sixteen; (3) been in the US for longer than five years prior to June 15, 2012; (4) be currently enrolled in school, have graduated from high school, obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the US; and (5) have good moral character, meaning the minor does not have any felony convictions, major misdemeanor offense(s) or pose a threat to national security.

The deferred action policy is not a new immigration law but rather a “work-around” to the application of current immigration law. As no new law was created, any “deferred action” that occurs is not a way for minor immigrants to obtain permanent residency or citizenship. It is a temporary, two-year pause in the immigrant being forcibly removed from, or asked to voluntarily leave, the US. While the DHS estimates that 1.4 million people will be helped by this new policy, there are many immigrants who will remain in limbo because the deferred action policy does not provide blanket relief for all minor immigrants present in the US illegally. Even if a minor immigrant meets all of the policy’s criteria, deferred action can still be withheld under a case-by-case review. Similarly, while the deferred action policy affords many minor immigrants the opportunity to remain in the US — if only temporarily — the policy is remarkably insufficient at addressing the full needs of many immigrants living in the US. In application, this new policy offers no relief to minor illegal immigrants who have not been in the US for five years as of June 2012, who may have entered the US as children but are now over the age of thirty or who have not been able to obtain a qualifying educational or professional history due to their illegal status. An incalculable number of individuals whose lives do not fit into the strict criteria of the policy guidelines, may well be without any other option for relief.

The deferred action policy was a bold political move in beginning the process of providing needed relief for many minor immigrants, but it is not enough. The DREAM Act and other legislative reforms are needed to allow for more flexible evaluation and more permanent solutions to complex immigration cases. Although the DREAM Act has largely been criticized as incentivizing undocumented immigrants to remain in the US illegally, that criticism alone should not end the discussion on the necessity of immigration reform or negate the Act’s potential usefulness. Any immigration law that allows illegal immigrants the option to obtain legal status will likely incentivize some future immigrants to pursue undocumented entry into the US. Furthermore, there will always be rule breakers and individuals who take advantage of established systems. Instead of creating and restricting immigration laws to penalize an entire group of people in response to the faults of a few, immigration laws should be established in a way that promotes social responsibility, accountability and fairness. At the very least, the DREAM Act is a start in that direction.

The DREAM Act, if enacted, would provide numerous benefits to both minor immigrants and society as a whole. Minors who are unable to gain citizenship on their own and do not qualify for asylum or special immigrant status can, through the Act, gain valuable educational and professional experience while contributing positively to the economy, social structure and culture of the US. Additionally, minor immigrants would be given an opportunity to establish stable living environments, undocumented immigrants would be encouraged to come forward to obtain legal presence in the US, the economy would be bolstered though the establishment of a diverse work force and immigrants would be provided with a more fair and just evaluation of their situation.

Though the deferred action policy was a bold and progressive step in the right direction, there is no reason it should be the only step taken in adjusting immigration policies to fit the complex conditions and needs of our current society. Legislative initiatives like the DREAM Act must be supported so the US can continue moving towards a more positive, socially responsible, legally accountable and fair immigration system.

Chris Schlag holds a B.S. degree in Environmental Health from Colorado State University and an M.S. degree in Occupational Health and Safety with Environmental Management from Columbia Southern University. Focusing on worker rights in environmental health and safety, Schlag worked as an environmental health and safety consultant for Colorado’s Workers Compensation fund, Pinnacol Assurance, for four years while also participating as an active board member for the Northern Colorado Section of the American Society of Safety Engineers. She currently works as a law clerk for the Law Offices of Gismondi and Associates in Pittsburgh, Pennsylvania.

Suggested citation: Chris Schlag, The “Deferred Action” Immigration Policy: A Bold but Insufficient Move in an Effective Immigration Policy, JURIST – Dateline, July 17, 2012, http://jurist.org/dateline/2012/07/chris-schlag-immigration-policy.php.