David Martin on New U.S. Policy to Defer Deportation of Young Immigrants


Professor David Martin discusses the new federal "deferred action" program, which officially launches today.

August 15, 2012

As many as 1.7 million young illegal immigrants may qualify for temporary legal status under a new federal policy, known as "deferred action," that goes into effect Wednesday.

The policy, which was announced by President Barack Obama in June, is meant to allow undocumented immigrants who were brought to the United States as children to apply for two-year deportation deferrals and work permits.

University of Virginia law professor David Martin is one of the nation's leading experts in immigration law. From 2009 to 2011, Martin was deputy general counsel for the U.S. Department of Homeland Security, and from 1995 to 1998 he was general counsel of the Immigration and Naturalization Service.

Martin recently discussed the Obama administration's new immigration policy and its implications.

How will the deferred action program work, and who qualifies?

Deferred action represents a decision by the Department of Homeland Security that a particular person is not an enforcement priority and so is essentially allowed, despite a violation of immigration law, to remain in the United States for a stated period.  It is not a regular lawful immigration status and it does not lead to a green card.  But people with deferred action are eligible for work authorization, and in most states they can also get a driver's license and may be eligible for some education programs previously barred to them. This new program, dubbed Deferred Action for Childhood Arrivals (DACA), represents a highly systematic and extensive use of deferred action, but the basic practice has existed for quite some time.  Successful applicants will receive deferred action for two years, with a possibility of renewal or extension.

As the program title indicates, the program is for foreign nationals who came to the United States during childhood (before age 16) and have resided here at least five years as of the date of the policy announcement, June 15, 2012. Anyone 31 or older on June 15 is ineligible, as is anyone who has been convicted of a felony, a "significant misdemeanor" such as driving under the influence, or three or more misdemeanors, and anyone judged a threat to national security or public safety. As of the date of application (not June 15), the applicant has to be a high school graduate, be enrolled in school or have obtained a GED.  Most people under 15 cannot now apply, but there is no stated end date for the program, and they can apply once they reach their 15th birthday.

Nearly all of the eligible population is directed to apply to U.S. Citizenship and Immigration Services (USCIS) by mail, with supporting documentation.  Some will be called in for an interview, and all will be scheduled for fingerprinting at a USCIS office, to enable a full background check before deferred action can be granted.

How does this program figure into the trajectory of President Obama's immigration reforms?

The program covers virtually all of the young people who would have benefited from the DREAM Act, which was initially introduced in 2003 with bipartisan support. The president has consistently supported that act as part of comprehensive immigration reform, and he also made a strong push for the separate enactment of a version of the DREAM Act in late 2010. It passed the House, but was blocked in the lame-duck Senate by a Republican filibuster. DACA provides a portion of what that act would have given its beneficiaries. 

The high level of support the public has given to the DACA policy — roughly two-thirds favorable in polls taken in late June — came as a welcome surprise. For all the legitimate concerns about weak immigration enforcement, and despite the harsh rhetoric we often hear about immigration violators, it is gratifying that such a strong majority of our fellow citizens accepts that we shouldn't hold children responsible. Most also seem to understand that such children have generally built their identities and life plans on their connections to this country. Deportation would be especially harsh for this population.  If DACA is seen as a success (and it may take a year or two for any real perspective on that question), it could boost modestly the eventual prospects for more comprehensive reform.

What are the weaknesses and strengths of this kind of plan, versus a similar plan proposed in the DREAM Act legislation?

DHS did what it could through executive powers, in the face of a congressional stalemate, but the executive branch can only withhold removal and grant work authorization.  It cannot grant a fully lawful immigration status, much less a green card, without a statutory foundation. Moreover, the decision to defer enforcement is revocable, and there is no guarantee of renewal after two years. Legislation is still needed for something more in the nature of a durable, permanent fix. 

What challenges do you foresee in implementing the law, either for the administration or program applicants?

Potential applicants are bound to feel some hesitation in deciding whether to come forward and apply for deferred action. Officially all they gain is a two-year reprieve from enforcement, with no guarantee of renewal — a special concern if Obama is not re-elected, because Romney is on record as vowing to veto the DREAM Act. Work authorization is a big attraction, of course, but at the same time applicants will be providing detailed personal information to DHS. The administration has tried to calm concerns with a confidentiality guarantee, promising not to use the information supplied for enforcement against an unsuccessful applicant (with some limited exceptions) or against an applicant's family members. It will boost the program considerably if USCIS can do effective outreach, and particularly if they can issue prompt decisions in a host of early cases (which realistically means 3-5 months, given the required background checks). The press will cover this program closely, and pictures of smiling young people with new work authorization cards will do more than anything to encourage doubters to apply.

For my part, I'd encourage eligible persons to come forward. There are risks, to be sure, but there are also risks in remaining here without deferred action.  The strongly positive reception of this program by the public makes me think that a President Romney would find it quite hard to terminate deferred action and start systematic enforcement against this population.  Recall that after he had effectively secured the nomination, Gov. Romney reportedly had Sen. Marco Rubio [of Florida] crafting a scaled-down Republican version of the DREAM Act — before the President's DACA initiative took the wind out of those sails. 

Outreach to encourage broad participation is a challenge for DHS, and a goal it will strive to accomplish.  But there are countervailing challenges as well. The integrity of the program is important, and USCIS has to guard against fraud. To this end, USCIS is laying considerable stress on the crucial role of documentary evidence relating to all the eligibility criteria, particularly in requiring school records. Critics will be looking hard at the program's controls to guard against manipulation, either by applicants or by shady "consultants" — USCIS has issued special warnings on this subject — who may charge a fee to prepare and file an application.   

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

News Highlights