Information On Obama's New Immigration Action

Frequently asked questions about the new Obama Immigration Action

By Attorney Saurab Rijal
Published on LatinoLA: December 7, 2014

Information On Obama's New Immigration Action

What did President Obama's do with Immigration Action?

1. The President acted on how we enforce immigration laws, how we process immigration benefits, how we encourage further business innovation, and how we welcome immigrants to this nation.
2. President authorized DHS to significantly expand its use of deferred action, which includes expansion of the current Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program, Deferred Action for Parental Accountability (DAPA).
3. The President coupled deferred action with other enforcement measures enforcement priorities to focus attention on national security threats, those with criminal convictions, and recent unlawful entrants.
4. The President's new memo focuses on convicted criminals rather than all unauthorized immigrants encountered by local authorities
5. The President made changes to and expanded several other programs, including programs that protect unauthorized family members of persons who join the military, in-country processing of waivers of the three- and 10-year admission bars, and protections for high-skilled workers transitioning from a temporary to a permanent legal status

What is the new DAPA program?

The Deferred Action for Parental Accountability (DAPA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (deferred action) and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs). The program will be open to individuals who:
‘«ů have a U.S. citizen or LPR son or daughter as of November 20, 2014;
‘«ů have continuously resided in the United States since before January 1, 2010;
‘«ů are physically present in the United States on November 20, 2014, and at the time of applying;
‘«ů have no lawful immigration status on November 20, 2014;
‘«ů are not an enforcement priority, which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators
‘«ů present no other factors that would render a grant of deferred action inappropriate; and
‘«ů pass a background check.
DAPA grants will last for three years. The DAPA program should be ready to receive applications by May 2015.

How was DACA (Deferred Action for Childhood Arrivals) expanded?

The DACA program is expanded by eliminating the age ceiling and making individuals who began residing here before January 1, 2010 eligible. If you have been in US for 5 years as of November 20, 2014 then and you were 16 years or younger when you entered US then you may be eligible. Previously, applicants needed to be under the age of 31 on June 15, 2012, and to have resided here continuously since June 15, 2007. Moreover, employment authorization will be for three (3) years. While USCIS will continue to take applications and renewals under current eligibility criteria, those eligible under the new criteria should be able to apply by Feb 2015.

How many people are affected?

About 3.7 million unauthorized immigrants could be eligible for the DAPA program, while another 300,000 people could qualify for DACA under the expanded guidelines. 5.2 million unauthorized immigrants could qualify for protection from removal under the two programs.

How will the government ensure that people eligible for DAPA are not deported before the new program is in place?

ICE and Customs and Border Protection (CBP) has been directed to identify expanded DACA and DAPA-eligible individuals who are already in their custody, in removal proceedings, scheduled for deportation, or whom they newly encounter, and to exercise discretion favorably for those individuals. For eligible individuals in immigration court or before the Board of Immigration Appeals, ICE lawyers are instructed to close or terminate their cases and refer those individuals to USCIS for case-by-case determinations.

What is the fee for the deferred action?

The deferred action programs will have a fee of $465 per application. This is similar to the DACA program that President Obama announced in 2012. There will be no fee waivers.

[b]Why can't the President just grant a permanent legal status and be done with this?

That is the job of Congress. President can provide temporary measure, designed to eliminate the fear of removal while the country comes to a resolution about permanent legal status for the unauthorized.

Will DAPA recipients be eligible for public benefits?

Deferred action recipients are eligible for driver's licenses in the overwhelming majority of states.

What are the enforcement priorities in the Immigration Action mean?

DHS will be focused on the removal of individuals who pose threats to "national security, public safety, and border security." These topline priorities include persons engaged in or suspected of terrorism or espionage, persons convicted of felonies, persons convicted of offenses defined as aggravated felonies by the immigration law, gang related convictions or intentional participation in gang activities, and recent border crossers. The second level of priorities includes convictions for significant misdemeanors (such as domestic violence, burglary, firearms offenses, drug trafficking, and DUI) or multiple misdemeanors (three or more) and recent border crossers (those who entered after January 1, 2014). Lowest priority is accorded to other individuals ordered removed after January 1, 2014.

What is President's legal authority for these Executive Actions?

The President, as head of the federal executive branch, is ultimately in charge of enforcing U.S. immigration laws. The President can make discretionary decisions, through his agencies, about whether and when to grant benefits or pursue enforcement actions. President throughout the history have taken these kinds of actions.

Does the President have the legal authority to authorize deferred action for 5 million people?

Yes. As the head of the executive branch, President has the power to enforce the law with the discretion to determine when, how, and against whom the law will be enforced.

What is Aggravated Felony?

It means offenses that are most severely punished under immigration law and that render an immigrant automatically deportable with no possibility of waiver or future readmission to the U.S. It includes murder, rape, sexual abuse of a minor, drug trafficking, and crimes of violence or theft that are punishable by a term of imprisonment of at least one year, among other offenses. Keep in mind that misdemeanors under state law and convictions for which less than a year in prison is served may be aggravated felonies.

What is misdemeanor?

The federal criminal classification scheme governs whether an offense is considered a felony or misdemeanor. A misdemeanor is an offense punishable by imprisonment of more than five days but not more than a year. The label a state attaches to a particular offense is not relevant. Thus, some offenses that a state labels as a misdemeanor, but which include a potential sentence of more than one year, are felonies for purposes of DACA. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor.

What is significant misdemeanor?

A significant misdemeanor for DACA purposes is defined by federal law that regardless of the sentence imposed, which includes burglary, sexual abuse, exploitation, domestic violence, unlawful possession and use of firearm, driving under the influence (DUI), and drug distribution or trafficking. A significant misdemeanor may also include any other misdemeanor for which the individual was sentenced to more than 90 days' imprisonment, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer.

About Attorney Saurab Rijal:
Immigration attorney at Rijal Law Firm
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