The Obama administration’s program to defer deportations for undocumented youths could involve 1.76 million people, according to recent estimates released by the Migration Policy Institute, a nonprofit think tank.
The deferral program, announced in June by Homeland Security Secretary Janet Napolitano, is an attempt to give temporary relief to young undocumented immigrants who would qualify for legal status under the Dream Act. Immigration-reform advocates hailed the deferrals as the first step forward in years toward fixing the country’s Byzantine immigration system. The program was pounced upon by critics, who accuse the Obama administration of overstepping its authority.
Unlike the more clear-cut Dream Act, which has not passed Congress, DHS’s deferral program is maddeningly bureaucratic. It relies on the administration’s right to decide whom to target (or not) in deportations. Deferrals for “dreamers” are intended for those whom the administration decides are low priority. Yet the application-processing system is still a huge undertaking for an already burdened agency. Meanwhile, potential applicants are hanging on every bit of information coming out of DHS.
DHS’s office of Citizenship and Immigration Services released guidelines on Friday spelling out some of the factors that it will weigh when determining whether the requests will be granted. That breeds only more questions, but USCIS Director Alejandro Mayorkas is patiently refusing to engage in hypothetical questions about individual circumstances.
“Please remember that the decision about whether or not to defer action in response to a request is an individualized decision,” Mayorkas said on Tuesday at an MPI-sponsored event. USCIS will be looking at the “totality” of the applicant’s record, but it also will be continuously updating its guidelines to clarify for potential applicants what their chances may be.
“This is ultimately, at the end of the day, an individual decision,” said National Immigration Law Center Executive Director Marielena Hincapie, whose group is coordinating national legal guidance for potential applicants.
MPI ratcheted up its estimate of eligible deferral applicants from an earlier prediction of 1.39 million after USCIS announced last week that young adults who lack a high school or GED diploma and are not students could qualify for a deferral if they enroll in school before Aug. 15, when USCIS will start accepting applications. MPI said that 350,000 young adult undocumented immigrants could be eligible for relief from deportation under this category.
From a logistical standpoint, launching a program with 1.76 million applications and no additional resources is virtually unprecedented in the history of immigration-processing systems. Under the 1986 immigration law that granted amnesty to undocumented foreigners, the Immigration and Naturalization Service processed 3 million applications. But Congress generously funded that program. What’s more, the requirements for amnesty eligibility under the 1986 law—residing in the United States continuously for four years—were fairly straightforward.
In this case, DHS’s decision to systematically grant deferrals to youth who were brought to the United States illegally by their parents was made without consulting Congress and in an era of tight budgets. Unlike the 1986 act, the deferral program also relies on individual-case-specific histories, which will require adjudicators to consider a variety of factors for each applicant. How many traffic tickets are too many? If the applicant visited an aunt in Mexico for three months, does that disqualify him or her from the continuous residence requirement?
These and other questions are swirling about the immigration-advocacy community as it gears up for its own unparalleled outreach efforts to encourage illegal-immigrant youth to apply for the program and help them navigate the system. “People have to believe that the government clearly meant what it said,” said Muzaffar Chishti, director of MPI’s office at New York University.
Assurances of confidentiality for applicants and their family members, for example, will need to be ironclad, Chishti said. Employers will be critical suppliers of documentation proving the applicants’ residency in the United States. Will they be safe from punishment? The government needs to “formally or informally make sure employers won’t be targeted for employer sanctions,” he said.
Mayorkas carefully avoided answering questions about employers, in large part because USCIS does not have jurisdiction in that area. He said that his office would work with the more feared enforcement wing of the immigration agency—Immigration and Customs Enforcement—to provide “greater clarity” to employers. Such clarity will be necessary, as MPI estimates that 58 percent of the eligible population of undocumented young adults is employed.
DHS will hire additional staff to process the applications it anticipates later this month, but it is limited by its current budget and the money it will raise from the $465 fee per applicant. USCIS, which handles requests for all kinds of visas, will use its four existing processing centers to handle deportation deferral requests.
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Nicklaus Misiti is the C.E.O. and Chief Attorney of one of New York City’s most successful immigration law firms, the Law Offices of Nicklaus Misiti, PLLC.