Key Factors, Unresolved Issues in New Deferred Action Program for Immigrant Youth Will Determine Its Success

On August 15, just 60 days after President Obama announced a policy to offer two-year relief from deportation to certain qualifying unauthorized immigrants under the age of 31 who were brought to the United States as children, U.S. Citizenship and Immigration Services (USCIS) began accepting applications for its new program. Even as many thousands of applicants lined up to apply or seek information on the program's first day, a number of key factors, some still unknown or unresolved, will ultimately determine the success of an initiative that will allow qualifying unauthorized immigrants a conditional reprieve from deportation.

The most salient issues to be addressed include the efficiency and uniformity of the program by the government and service providers; those of confidentiality concerns for both applicants and their families and employers who have hired them, national and state-level issues of how to qualify for the educational attainment guideline, and unspecified guidelines of what crimes preclude registration. As well, how states choose to react to DACA will be a significant factor in DACA's implementation, as already Arizona Governor Jan Brewer has issued an executive order noting the state will not grant driver's licenses or other public benefits to DACA recipients.

Though interpretation of some of the guidelines remains unclear – and it remains an open question how states will react on key issues such as whether DACA beneficiaries are deemed eligible to apply for and receive in-state tuition rates and other criteria – the broad outlines of the program have emerged. In addition to protection from deportation, the program will on a case-by-case basis offer work authorization and possibility of travel abroad to a subset of this specific unauthorized population, popularly referred to as DREAMers (from the proposed Development, Relief, and Education for Minors Act on which the policy is based). The Migration Policy Institute (MPI) estimates that 1.76 million individuals could be potentially eligible for the program, formally titled Deferred Action for Childhood Arrivals (DACA), making it the largest U.S. immigration benefit program ever authorized by the U.S. executive branch at one time.

While the program has been widely welcomed by immigrant advocates, educational leaders, and the thousands of immigrants who lined up outside USCIS offices and immigration service provider organizations on August 15 in Chicago, New York, and elsewhere, its scale presents considerable challenges to USCIS, the applicants, immigrant advocates, employers, and the immigration community in general. If comparable immigration programs of the past are any guide, a number of significant factors will determine the success of the program. These include:

Confidentiality

Given the fact that unauthorized immigrants must not only flag their status but also provide their names and addresses to the government when applying, assurances that their application information will not be shared for immigration enforcement purposes is obviously of major concern to them and their advocates. USCIS has stated that information submitted by DACA applicants about themselves and their family members or guardians will not be used for immigration enforcement purposes, unless the information reveals fraud, criminal offense, or a threat to national security or public safety. Confidence in the DACA program will erode if individuals or family members who do not meet these criteria are placed in removal proceedings.

A similar concern about confidentiality could emerge with employers who provide documentation about an applicant's work history. Since 58 percent of potential applicants are currently employed, employer documentation will be vital in establishing eligibility for many applicants. But employers may be reluctant to provide documentation if they suspect that the information may subject them to investigations and sanctions for hiring unauthorized workers. Their fear could be partially addressed if the Department of Homeland Security (DHS) issued a specific policy statement that any information presented by a DACA applicant will, by itself, not trigger an employer sanctions investigation. So far, no such proposal has been advanced.

Efficiency and Uniformity in Adjudications

The initial application processing by USCIS will be critical in building confidence in the program. If application approvals that meet the prima facie criteria are delayed, potential applicants will become discouraged. Though USCIS has indicated that hiring new officers for processing DACA applications will happen, quality training will be required quickly. Applications will be handled at different regional USCIS Service Centers; thus uniformity in adjudications will be important – especially in the absence of administrative appeal or judicial review of denied applications. At the same time, USCIS intends to allow immigrants to supplement their information if necessary by issuing a Request for Evidence (RFEs) before denying an application for lack of sufficient documentation. But consistency in issuing RFEs must be assured. In a decentralized program, transparency and uniformity in the review process is critical for a streamlined process.

For USCIS, the case-by-case review will make for a labor-intensive process. The absence of a deadline for submission of applications makes it difficult to plan for staffing and infrastructure demands.

Continuous Residence and Criminal History

The program guidelines state that applicants must have continuously resided in the United States since June 15, 2007, except for "brief, casual, and innocent" absences. The guidelines clearly establish what absences will not qualify: those which result from immigration enforcement action, including exclusion, deportation, removal, or voluntary departure, or those which involve criminal activity. However, no specifics are addressed about what constitutes acceptable absences.

Similarly, the guidelines specifically list the convictions which automatically render an individual ineligible for deferred action. These include all felonies, significant misdemeanors involving domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or any crime with a sentence of more than 90 days in custody. Still unclear are which offenses will not bar potential immigrants from the program —such as juvenile crimes, immigration-related crimes, expunged or vacated crimes. The guideline language noting that disqualifying significant misdemeanors will be determined by "totality of circumstances" suggests that the government will retain considerable leeway in determining eligibility of individuals with a criminal history.

Qualifying Schools for Enrollment / Schools Accepting Unauthorized Immigrant Applicants

To meet DACA education requirements, an applicant must have graduated from high school or obtained a GED certificate, or must be "currently in school" on the date of application. Under the guidelines, schools include a public or private elementary, junior high, middle, high or secondary school, or an education program for obtaining a high school diploma, or certificate of completion, or GED. They also include an education, literacy (such as English as a Second Language courses), or career-training program designed to place students in the workforce or in postsecondary education, or a program designed to assist students obtain a GED, high school diploma, or equivalent. Acceptable education, literacy, and training programs are those which are federally or state funded. If the institution is private, applicants must establish that the program possesses "demonstrated effectiveness" based on how long it has operated and its track record for successfully testing goals, workplace and education placement. Placing the onus on the applicant to substantiate such criteria raises many concerns, especially when the applicant is unsure that the institution meets the criteria at the time of enrollment.

While the educational requirement of DACA incentivizes individuals without a high school diploma or its equivalent to continue their education or enroll in school, it may place increased demands on school districts already suffering from budget deficits. Furthermore, the ability for potential DACA beneficiaries to pursue higher education and economic advancement will depend on current and future state laws that restrict unauthorized immigrants from enrolling in public colleges, paying in-state tuition rates, and receiving financial aid. Currently, South Carolina, Alabama, and Georgia have restrictions in place or pending legislation that bans unauthorized immigrants from enrolling in some or all public colleges and universities.

States will also have to grapple with the decision of whether or not to offer in-state tuition to this population. Higher education challenges may potentially be the subject of new state legislation or lawsuits, as currently only 12 states permit in-state tuition to certain unauthorized immigrants enrolling in some or all public colleges and universities.

Outreach and Legal Services

The scale of the deferred action program — and the speed and effectiveness of its implementation —are major challenges for advocacy organizations and service providers in the communities where the applicants live. Already, USCIS has launched a number of initiatives to inform stakeholders about program details and immigration coalitions have also geared up to educate this population and assist with the application process.

A successful outreach campaign will have to be refined and tailored to address the diversity of audiences and the many competing messages that need be communicated. Different media strategies will be effective in different populations – from those in large metropolitan areas to those in rural communities; from the well-educated to struggling students; from tech- savvy to tech-challenged.

Successful outreach initiatives encourage potential applicants to apply; inform them of the benefits and risks of applying, especially if there is a criminal history; warn individuals against dishonest legal service providers; and caution against entities that may not be qualified to give educational requirement certificates for the program. Any evidence of fraud or misuse of the program will undermine its credibility and the wide support it has generated in the public arena.

Finally, since the program calls for case-by-case determination, cases should be reviewed before submission by practitioners knowledgeable about the program eligibility requirements. To provide effective legal review of cases at affordable price is a major task for the legal and advocacy communities.

However, despite all these challenges, DACA may present an ideal opportunity for the government and the communities to work together in shaping a successful — and meaningful — program.

Read MPI’s Demographic Profile of the DREAMers Potentially Eligible under the Deferred Action Policy.

Learn about the details and application process of the Deferred Action for Childhood Arrivals on the USCIS website.

Read MPI’s June Policy Beat on Deferred Action.

Read President Obama’s June 15 remarks on the Deferred Action program.

Read the memorandum issued by Homeland Security Secretary Janet Napolitano announcing the new prioritization policy on June 15.

Policy Beat in Brief

Nine Border Patrol Stations Slated for Closure. Over the next six months, Customs and Border Protection (CBP) will close nine Border Patrol stations across four southern and northern border states to concentrate resources and staffing to stations closer to the U.S. border. The majority of station closures will occur in Texas: in Abilene, Amarillo, Dallas, Lubbock, San Angelo, and San Antonio. Stations in Riverside, California; Billings, Montana; and Twin Falls, Idaho will also be closed. While CBP contends that the closures will allow the agency to focus enforcement capabilities in high-priority areas, the decision has drawn criticism from members of Congress and some community officials who have stated that the loss of Border Patrol assistance will undercut security and place new burdens on local law enforcement agencies.

• Read CNN's article on the station closures.

In the Meantime...

This month, the first CBP avatar, equipped with speech recognition and voice anomaly-detection software, was installed at the Nogales, Arizona port of entry to facilitate the port's Trusted Traveler Program.

Ninth Circuit Rules that Department of Homeland Security cannot Revoke Asylum. The Department of Homeland Security (DHS) does not have the authority to terminate asylum status, ruled the 9th Circuit Court of Appeals. The case is a byproduct of the 2003 restructuring of the U.S. immigration system when most functions of the Immigration and Naturalization Service were transferred to DHS. Gurjeet Singh Nijjar, a native of India, was granted asylum in 1996 by the Department of Justice (DOJ) which housed the Immigration and Naturalization Service before its dissolution post-9/11. After the formation of DHS, the department revoked Mr. Nijar's asylum status on grounds of fraud. In its decision, the Court of Appeals held that while both DHS and DOJ can grant asylum, Congress did not give DHS authority to revoke asylum, and conferred that authority exclusively on DOJ.

• Read the 9th Circuit's decision.

EB-5 Program Extension Bill Has Passed in the Senate. On August 2, 2012, the U.S. Senate passed a bill, sponsored by Senator Patrick Leahy (D-VT), that will extend the authorization of the EB-5's Regional Center Program by three years. The EB-5 visa program grants permanent residency to foreign nationals who invest 1 million dollars in U.S. businesses, or $500,000 in U.S. businesses located in rural or designated areas with high unemployment, leading to the creation of at least ten U.S. jobs. The Regional Centers allow certain private corporations or government agencies to pool investment money and make large investments in specific geographic areas.

• Read the press release on the Senate's passage of Senator Leahy's EB-5 bill.

Study Shows Decrease in State Immigration Measures in 2012. According to a recent study by the National Council of State Legislatures (NCSL), introduction and passage of state immigration laws has significantly declined in 2012. The study found that in the first half of 2012, state lawmakers introduced 40 percent fewer bills and resolutions related to immigrants and refugees than in the first half of 2011. The number of enacted bills has also fallen by 20 percent since the first half of 2011. The study also shows that law enforcement, identification, and driver's licenses remained top issues in state legislation, in addition to budget allocations for English as a Second Language and naturalization promotion programs.

• Read the NCSL study.

US-VISIT Plans Use of Facial Recognition and Retina Scanning. According to press reports, Customs and Border Protection (CBP) and US-VISIT, which stores biometric and other data of U.S. immigrants and visitors in the Department of Homeland Security, will begin to test the feasibility of iris and facial recognition technology in a pilot program planned for the Border Patrol station in McAllen, Texas. Currently, CBP collects and stores fingerprint records for most immigrants and visitors. Future testing of new identity confirmation technologies and incorporation of this data into US-VISIT databases internally as options for airports, land ports of entry, enforcement purposes, and Trusted Traveler Programs.

• See NextGov's article on new US-VISIT identity technologies.

Diversity Visa Lottery will be Open to Applicants in October. Online registration for the 2014 Diversity Visa Lottery Program is set to begin on October 2, 2012. Each year, the congressionally mandated Diversity Immigrant Visa Program awards up to 55,000 diversity visas, drawn at random, to immigrant visa-seeking applicants from countries that have sent fewer than 50,000 immigrants to the United States during the last five years.

• Learn about the DV program at the State Department's website.

State and Local Policy Beat in Brief

Massachusetts Stiffens Vehicle Registration Requirements and Penalties for Driving without a License. On July 30, 2012, Massachusetts state legislators voted to override Governor Deval Patrick's veto of a state measure that requires anyone wishing to register a car in the state to have a license, social security number, or other proof of legal residence. Previously, the Registry of Motor Vehicles only required the applicant's name, address, proof of insurance, and date of birth. The new measure, designed to prevent unauthorized immigrants from registering or operating motor vehicles, also stiffens monetary penalties for those caught driving without a valid license by increasing the minimum fine for the first offense and establishing new fines for subsequent violations.

• Find an overview of the MA state budget process.
• Read the Boston Globe report on the new measure.

New York Law Requiring Pharmacists to be U.S. Citizens or Legal Permanent Residents held Unconstitutional. In the case Paidi v. Mills, the 2nd Circuit Court of Appeals has found unconstitutional a New York law requiring that an individual has U.S. Citizenship or Permanent Residency to acquire a pharmacist's license. The plaintiffs, a group of foreign nationals admitted to the United States on nonimmigrant visas to work as pharmacists, alleged that the state law violates the U.S. Constitution's Equal Protection and Supremacy Clauses.

• See the 2nd Circuit Court of Appeals' ruling.

Chicago Mayor Introduces Welcome City Ordinance. Chicago Mayor Rahm Emanuel has introduced and is now promoting a new ordinance, called the Welcome City Ordinance, which limits local law enforcement cooperation with federal immigration authorities. The ordinance will only allow city police to detain unauthorized immigrants if they have an outstanding criminal warrant; have been convicted of a felony; are defendants in a pending criminal case for a felony offense; are known gang members; or are threats to public safety or national security. An existing Chicago ordinance already prevents the Police Department from inquiring about the legal status of crime victims, witnesses and other law-abiding residents, and prohibits city officials from questioning those seeking municipal services about their immigration status.

• See Mayor Rahm Emanuel's press release on the Welcome City Ordinance.