Foreign Nationals Brought to U.S. as Children Given Temporary Relief

President Barack Obama and the U.S. Department of Homeland Security (DHS) announced a major policy change on June 15, 2012, that could have far-reaching implications for some individuals who are present in the United States unlawfully. In short, the U.S. government will no longer seek to remove (deport) individuals who have been present in the U.S. for at least five years, if they were brought to the country while under the age of sixteen, and meet certain other eligibility requirements. Any such individual will be given a two-year deferred action on any removal proceeding and would be eligible to apply for employment authorization during that two-year timeframe. This is a short-term measure and does not provide any permanent benefits, unless there is a change in law or policy.

Requirements for Eligibility of Two-Year Deferred Action

The June 15, 2012 memorandum from DHS Secretary Janet Napolitano states that the government will now generally exercise “prosecutorial discretion” and will not seek to remove a person who meets the following criteria:

  • Came to the United States while under the age of sixteen
  • Has resided in the U.S. continuously for the last five years
  • Is studying in school, or has graduated from high school, received a GED, or is an honorably discharged veteran of the U.S. military
  • Has not been convicted of any serious criminal offense or any series of minor misdemeanors
  • Is under thirty-one years of age

This grant of prosecutorial discretion will initially be for a two-year period, with the possibility of future extensions.

Potential Benefits for Those Eligible

The memorandum from DHS Secretary Napolitano states that people who meet these requirements will no longer be placed into removal (deportation) proceedings. The memorandum further states that DHS will terminate the removal cases for those who are already in the Immigration Court system. Those who qualify will be eligible to receive employment authorization for the initial two-year period.  The USCIS must devise and implement an application method for eligible individuals who have not previously been identified by the government as immigration violators.

Disadvantages of Policy Compared to DREAM Act

The provisions of this memorandum largely mirror some of the proposed provisions of the DREAM Act legislation. The DREAM Act was considered by the U.S. Congress on multiple occasions for over a decade, but failed to receive enough votes for passage. However, it is important to distinguish the prosecutorial discretion policy change from the benefits that would have been provided by the DREAM Act.

The June 15, 2012 prosecutorial discretion memorandum merely states that the U.S. government will not seek to remove individuals who qualify under its provisions for a period of two years, and that such individuals will be eligible for employment authorization during the two-year deferred action period. This memorandum provides only a temporary measure of relief to qualified individuals. It is not a permanent solution, as it does not provide permanent residence, or any long-term immigration status. It does not provide U.S. citizenship or a “path to citizenship.”

Moreover, since this is a policy decision, and not a change in the law, subsequent administrations could easily reverse this policy – an important consideration in an election year. This possibility has given rise to fears on the part of some potential applicants who have not been placed in removal proceedings. The concern for these individuals is that by applying for this relief, they are bringing themselves to the attention of the U.S. government. If the policy is later reversed, they could end up in removal proceedings at that point.

Prosecutorial Discretion Under DHS Policy

The concept of prosecutorial discretion is nothing new. Prosecutors of all types have the authority to use common sense and judgment in determining when to pursue various types of violations. A simple example of this is a police officer deciding to issue a warning rather than a speeding ticket, even if the driver was exceeding the speed limit.

The policy in question is tied to a June 17, 2011 U.S. Immigration and Customs Enforcement (ICE) memorandum on prosecutorial discretion, which was discussed in our October 14, 2011 NewsBrief, Administrative Policy on Removal: a Matter of Priorities, available on MurthyDotCom. The June 17, 2011 memorandum sets forth guidelines regarding the use of discretionary, case-by-case decisions regarding which removal cases to pursue in an effort to direct the enforcement focus to high priority cases.

Policy Raises Controversy Among Many

As expected, the response to the change of policy has been swift from all along the political spectrum. Democrats generally are in support of the change in policy, while most Republicans oppose it. During an interview, presumptive Republican presidential nominee Mitt Romney declined to state whether he would reverse the policy if he were elected, but stated that he favored a more permanent legislative solution to the problem.

Critics of the policy have pointed to the current struggling economy and unemployment rate. The policy change, of course, is controversial. One of the issues is the blanket nature of the relief, under the label of discretion. It is argued that the terms of the memorandum are not consistent with prosecutorial decisions that are truly case-by-case and discretionary.

We at the Murthy Law Firm note that there are other examples of the DHS’s use of deferred removal action as an option to protect a specific group. In June 2009, the DHS granted deferred action to the widows of U.S. citizens who had not been married for two years at the time of their spouses’ deaths – people who would otherwise have been subject to removal from the United States under the law at the time.

Support of U.S. Secretary of Labor

U.S. Secretary of Labor Hilda L. Solis released a statement in support of the DHS change of policy. Secretary Solis stated, “The major change to our nation’s immigration policy announced today by the U.S. Department of Homeland Security will not only benefit young immigrants, who know no other country than this as their own, but our economy and our nation as a whole.”


The application procedures under the deferred action for the two-year temporary benefit have not been issued. It is likely the DHS will release guidance on application procedures within the next 60 days, as required by the memorandum. The controversy surrounding this policy change is likely to continue to brew at least through the election. Updates will be posted on MurthyDotCom as additional guidance is released and when there are further developments in this policy shift.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.