Deferred Status Is Not Lawful Status

The DREAM Act, last proposed in 2011, has not been made into law (see prior blog). If it had been enacted, it would have provided an opening for young undocumented immigrants to potentially become lawful permanent residents. Because of the formidable opposition to the Dream Act in both the House and the Senate, President Obama used his authority under the executive branch of the federal government to unilaterally provide some of the benefits of the DREAM Act. Through the Deferred Action for Childhood Arrivals (DACA) program, these executive actions allowed the government to defer deportation (also known as deferred action), not end the possibility of deportation. Some of the President’s executive actions have been delayed due to an appeal by the state of Texas.

Deferred action is a type of temporary relief from deportation. The authority of President Obama to create this type of action originates from his position as the leader of the executive branch of the federal government, which administers and enforces the law, not the legislative branch (Congress) that creates new laws or repeals existing ones, or the judicial branch which interprets laws or strikes them down as unconstitutional. Through deferred action, the Department of Homeland Security (DHS) authorizes non–citizens to stay in the country temporarily. Because the program is run by the executive branch, when a new President comes into office the current program could change or end entirely.

President Obama announced in November of 2014 that DHS would not deport certain undocumented parents of U.S. citizens and parents of lawful permanent residents. The president also announced an expansion of the DACA program for youths who came to the U.S. as children.

U.S. Citizenship and Immigration Services (USCIS) is currently not accepting applications for the expanded DACA program for youth or the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In February a federal district court in Texas issued an order temporarily halting the DAPA and expanded DACA programs.

That decision was upheld by the U.S. Court of Appeals for the Fifth Circuit in November. The administration has appealed that decision to the U.S. Supreme Court, which will likely decide in January or February of 2016 whether to hear the appeal. As a result, the DAPA and expanded DACA programs are in limbo until the Supreme Court decides to take the appeal and, if it does, until a final decision is issued.

The original DACA program is still in place and allows qualified applicants to obtain deferred action under the guidelines issued in 2012. The applicant qualifies if he or she meets the following criteria:

  • Was under the age of 31 as of June 15, 2012,
  • Came to the U.S. before turning 16 years old,
  • Continuously resided in the U.S. since June 15, 2007,
  • Was physically present in the country on June 15, 2012 and at the time of the request,
  • Lacked lawful status as of June 15, 2012,
  • Is currently in school, graduated or obtained a certificate of completion from high school, obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or the Armed Forces, and
  • Has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors and otherwise doesn’t pose a threat to national security or public safety.

A grant of deferred action is temporary, but the person is considered to be lawfully present in the country for as long as the grant of deferred action status. If you want to find out if you may be able to obtain deferred status, talk with the dedicated Kentucky immigration lawyers at CF Abogados today. Please give CF Abogados a call at (859) 971-0060 or fill out the online contact form to GET HELP NOW.