On Friday June 15, 2012, the Obama administration announced that it will halt the deportation of young immigrants who were brought to the country as minors and meet other specific requirements. The action is an affirmative and bold response to the broken immigration system and temporarily eliminates the threat of deportation for promising youths who would qualify for relief under the DREAM Act.  This action gives Congress the space needed to reach a consensus and craft a bipartisan solution that fixes America’s broken immigration system once and for all.

The Department of Homeland Security set forth the eligibility criteria, including the ability to obtain employment authorization pursuant to a grant of deferred action.  Restrictionists and critics of the President in and out of Congress now attempt to spin this initiative as a cheap political move that exceeds the President’s lawful authority.

But they are flat out wrong.

Deferred action has long been used by U.S. presidents to prevent the removal of immigrants for humanitarian reasons.  A grant of deferred action is an exercise of prosecutorial discretion; the Department of Homeland Security, focusing on violent criminals and national security risks, essentially postpones the removal of an immigrant whose case is not a priority—hard working mothers and fathers for example.  Statutory authority for deferred action is founded in the overall authority of the Secretary to administer and enforce the law and can be found at INA §103(a).

Deferred action is also recognized in the regulations as an act of “administrative convenience to the government” to give lower priority to prosecution in certain cases. 8 CFR §274a.12(c)(14).  The regulations also authorize the Department of Homeland Security to grant employment authorization for recipients of Deferred Action and authorization to travel. 8 CFR §274a.12(c)(14).   Deferred action is intended for individuals already present in the United States.

Deferred Action does not provide an individual with permanent immigration status in the United States. Young immigrants who qualify for deferred action will be permitted to sustain themselves economically, but will not receive green cards or any other lawful immigration status, nor will they be permitted to sponsor family members.

Congress’ failure to act on immigration reform has forced the Administration to take affirmative legal steps to fashion a sensible temporary solution to our broken system.  This most recent action by the Administration reaffirms that our country values the contributions of all individuals.  Young immigrants who have grown up in the United States have intertwined their culture with American culture, have adopted values and contributed to the fabric of our society.  They will play a big role in the future of America’s economic growth, and our ability to remain competitive in a global economy.

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