New Obama policy will grant legal stay for Dreamers

New Obama policy will grant legal stay for Dreamers

It is now official that those who qualified under the Dream Act can stay in the U.S. legally and get working authorization.  Although the Dream Act did not pass in Congress, Pres. Obama used his executive power to halt the deportation of those qualified under the Dream Act through prosecutorial discretion.  This is the power of the Chief Executive to stop deportation of certain aliens who do not pose a threat to the security of the United States.  Those who qualify for prosecutorial discretion will be given legal stay and working authorization.

Question:   Who qualifies for prosecutorial discretion?

Answer:      The following criteria should be satisfied before an individual is considered for prosecutorial discretion:

  1. Came to the U.S. under the age of 16 years;
  2. Has continuously resided in the U.S. for at least 5 years before June 15, 2012 and is present in the U.S. on June 15, 2012;
  3. Is currently in school, has graduated from high school, has obtained a GED certificate, or is honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  4. Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to the national security or public safety and
  5. Is not above the age of 30 years.
  6. Must pass background check.

Question:   What is prosecutorial discretion?

Answer:      Prosecutorial discretion is the power of the prosecutor (the government) to decide who to charge, what charges to file, and when to drop the charges and how to allocate prosecutorial resources.  In the context of immigration law, the prosecutor can waive or drop the charges for aliens staying illegally in the U.S. so that the government can focus on more important security duties of protecting the nation from all kinds of threats.

Question:   What is deferred action?

Answer:      Deferred action is when the Department of Homeland Security (DHS) agrees not to place an individual in removal (deportation) proceedings or not to execute an order of removal. Under the Obama policy those who qualifies for prosecutorial discretion will be given deferred action and work authorization for two years renewable thereafter.

Question:   How will deferred action be implemented?

Answer:      The Secretary of Homeland Security issued a memo to the CBP, ICE and USCIS on how to implement this policy.

1. For those aliens who were encountered by the CPB, ICE USCIS, and meet the above criteria.

  • these agencies should exercise prosecutorial discretion        to stop these aliens to be placed in  removal proceedings   or be removed from the U.S.
  • b. USCIS is instructed to follow the guidance in issuing a Notice to Appear.

2.  For individuals who are in removal proceedings but not  yet subject to final order of removal and meet the above   criteria.

  • ICE should exercise prosecutorial discretion by  deferring action for a period of two years subject to   renewal in order to prevent removal.
  • ICE is instructed to begin the process within 60 days   from June 15, 2012.
  • ICE is instructed to begin the process for those aliens    identified in the review of cases pending before the   Executive Office for Immigration Review.

3.  For individuals who are not currently in removal  proceedings .

  • USCIS should establish a clear and efficient  process for exercising prosecutorial discretion by  deferring action against individual who meet the criteria.
  • The USCIS prosecutorial discretion process shall also be available to individuals subject to final order  of removal regardless of their age.
  • USCIS is directed to implement the process within  60 days from June 15, 2012.

Question:   What shall I do if I believe I qualify for prosecutorial discretion?

Answer:      Since this could be an opportunity of a lifetime, it is always advisable to consult with an experienced immigration lawyer to guide you through all the process to avoid being removed or deported.  The Law Office of Crispin Caday Lozano has the experience and expertise in dealing with all aspects of immigration and nationality law.

Note: This is not a legal advice



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