On June 15, 2012, the Department of Homeland Security (DHS) announced that, as part of its exercise of prosecutorial discretion, immigration authorities will no longer pursue the removal (deportation) of certain undocumented immigrants who were brought to the United States as children. Eligible foreign nationals will be granted “deferred action” on their removal if they arrived in the United States when they were younger than 16 and are now 30 years of age or younger; are attending school, have graduated from high school, passed the general education development (GED) test or served honorably in the U.S armed forces; and do not have any serious criminal history. Persons covered under this policy also are eligible for work authorization. Eligibility is to be assessed on a case-by-case basis and reviewed every two years.
Responses to the announcement have been as diverse as the vast range of opinions that frame immigration policy across the country. Some have applauded the policy, calling it “a historic humanitarian moment,” while others have gone so far as to threaten to sue the Administration for failing to enforce the law and usurping Congressional powers. Yet another view, expressed by those who sympathize with the intending beneficiaries of this new policy, is that the deferred action approach is just a short-term fix to a long-term problem and that the real solution rests with the legislature.
The concept of prosecutorial discretion is not new to law enforcement. Federal, state and local prosecutors regularly plea bargain with defendants and even choose which cases to prosecute in the first place. With rare exception, prosecutors exercise this prerogative while keeping in mind the overall law enforcement interests, not the least of which is availability of government resources.
The exercise of prosecutorial discretion is somewhat less common in immigration enforcement, which is understandable because, unlike a criminal defendant, an undocumented immigrant does not become a legal resident merely by avoiding prosecution. Significantly, it is more important in immigration to achieve a definitive result. A mere exercise of discretion not to prosecute removal proceedings leads to immigration status limbo, not a definitive status.
Discretion, however, is a traditional tool in immigration enforcement. The Obama Administration did not invent prosecutorial discretion, and, in fact, has followed the lead of previous Presidents, which have included Republican administrations. For example, in October 2005, William Howard, the Bush Administration’s principal legal advisor to U.S. Immigration and Customs Enforcement (ICE), an agency within DHS that enforces immigration laws in the United States, issued a directive to all of the agency’s lawyers to exercise discretion both in putting undocumented immigrants into removal proceedings, and in pursuing cases already in proceedings. The Howard Memorandum was distributed agency-wide, not just to ICE’s lawyers, and emphasized the toll on government resources when the agency fails to exercise appropriate discretion.
In June 2011, ICE Director John Morton, an Obama appointee, echoed the principles set forth in the 2005 Howard memorandum and in several policy memoranda issued by ICE’s predecessor agency, the Immigration and Naturalization Service (INS).
The criteria for favorable prosecutorial discretion are similar to the criteria for legalization enumerated in the Development, Relief and Education for Alien Minors (DREAM) Act. The concept first surfaced during the 107th Congress (2001-02) and a bipartisan bill was introduced in the Senate without any legislative action. In the following Congress (2003-04), another version of the DREAM Act was introduced with strong bipartisan support, and a Republican-led Senate Judiciary Committee approved the measure by a margin of 16 to 3. The 108th Congress’s version included for the first time enlistment in the military as an alternative to higher education, and heightened the educational requirement from simply a high school diploma or GED to at least an associate’s degree (or equivalent number of credits) or graduation from trade school before one can adjust to permanent resident status. The 108th Congress’s version also expanded the list of disqualifying grounds to ensure that only those with the cleanest records could qualify. That version became, in essence, the blueprint for all DREAM Acts introduced in the subsequent congresses.
Ironically, though the DREAM Act was once a Republican-led effort, it has evolved into a Democratic initiative over the years following the 108th Congress. The farthest that the DREAM Act had ever gone legislatively was during the 2010 lame-duck session, when the outgoing Democratic majority in the House of Representatives passed the bill 210-198. In the Senate, where a supermajority of 60 votes out of 100 is needed to thwart filibuster, the bill did not have the votes.
In the current 112th Congress, as an alternative to the DREAM Act (which some have called an “amnesty”), Sen. Marco Rubio (R-FL) has been exploring the viability of an alternative approach that provides legal status to qualified beneficiaries without a direct “path to citizenship” that so many enforcement proponents find objectionable. Obama’s announcement could either deflate support for Rubio’s efforts or give Rubio a platform to argue that a legislative solution is superior – and still needed desperately. The impact of Obama’s plan on Rubio’s bill will become more evident as the general election approaches.
The tendency during an election year is to overstate the favorable and adverse impact of any and all actions by a political ally or opponent. The latest announcement is no different. Depending on the frame of reference, the initiative could be the best thing that has happened to the immigrant community, a form of amnesty that flies in the face of law and order, or a nice idea that is inadequate to solve the problem at hand.
In all fairness to the Obama administration, from the perspective of the students affected by the policy, it has to be better than nothing. At the very least, the students do not have to live with the constant threat of deportation, and, in most if not all cases, they will have work authorization during the period that deportation is deferred. It is also fair to say that, without Congressional cooperation, this is the most the White House can do.
Furthermore, having some temporary reprieve allows these youngsters to pursue post-high-school education with the hope that someday Congress may grant them legal status. Members of Congress can criticize the deferred action as “too little, too late,” but Congress is the body that needs to act.
However, it is equally significant to note that deferred action does not confer any legal status at all. It is, as the term suggests, a deferment of deportation from the United States unless Congress chooses to pass a law conferring status. Other than temporary work authorization, deferred action does not provide ancillary benefits, such as in-state tuition rates (which remain barred by federal law) and does not provide a platform (such as a student visa) from which the students may change to an employment-based status upon graduation.
Finally, the new policy does not have the force of a formal regulation or executive order. Secretary Napolitano’s directive can be modified or rescinded at any time, offering little assurance to those currently living in the shadows to step forward and submit to the discretion of the immigration authorities. Obviously, the government can only “defer action” when it has any “action” take in the first place. This means that in order to avail oneself to deferred action, one first has to bring oneself to the attention of law enforcement. Without any assurance that the policy would continue in perpetuity or lead to another legal status, some may be reluctant to come out of the shadows for a minimal and speculative benefit.
There is a cost – or, more appropriately, there are costs – to carrying on without creating a safe space for DREAM Act eligible kids. The costs are moral, they are social, and they are economic.
These children are our children. Raised and educated as Americans, they think like Americans. They have become – and are – part of the fabric of America. To not recognize them as part of the American family is, in many ways, to weaken our union.
We should view these kids not as immigrants, but as the Americans they are. They are homegrown, not foreign, talent. Turning that talent over to another country, which is likely competing with us in the global marketplace, makes little, if any, sense. Providing these kids with access to higher education or the ability to serve in the military will only strengthen this kids and allow them to use their high school level training to add value in service of the United States, their true country of allegiance.
There are also economic costs to not recognizing these kids as the Americans they are. While many regard immigrants as burdens on society, the data in this case do not support the proposition that DREAM Act eligible kids would be a drain on society. In fact, the Congressional Budget Office has estimated that legalizing the population in question would reduce deficits by about $1.4 billion over the next decade and increase government revenues by $2.3 billion over the same period of time. Some even estimate that the same population would earn $1.4 trillion over a 40-year period. The fact is, America will get more from the service of these kids than she will pay.
These benefits should not be a surprise to anyone, nor should it be hard to believe that legalizing that population would boost U.S. innovation and competitiveness in the 21st century. Stability and opportunity matter in the development of our kids. DREAM Act eligible kids deserve the stability of a status and the opportunity to continue their education and service to this country. The costs of not providing that stability and those opportunities are simply too high to justify doing nothing.
DHS’s deferred action plan is a sound starting place. More than any other policy adopted to date, it officially recognizes the special characteristics of this unique population and the need to embrace these children as part of the American family.
It is not enough, however, to simply say, “Come forward and we’ll think about not deporting you for two years.” These kids have earned a shot at the stability they’ve never been given, and the opportunity to grow and serve the nation that is, and has been, their only real home.
Congress must step up and act quickly and boldly. If it doesn’t, we will lose a talented generation of homegrown talent and risk falling further behind in the global competition for innovation and advancement. It’s not just the right thing to do, it’s the smart thing.
 Department of Homeland Security, “Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities,” June 15, 2012.
 “DREAM Act Passes U.S. House, but Appears Doomed in Senate,” Arizona Republic, Dec. 9, 2010.
 “Marco Rubio calls for bipartisan action on immigration, denounces Obama’s executive order,” Washington Post (June 22, 2012).
 Memorandum of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement (Oct. 24, 2005).
 Id. at 2.
 Memorandum of the Director, U.S. Immigration and Customs Enforcement (June 17, 2011).
 S. 1291 (107th Congress).
 S. 1525 (108th Congress).
 S. 3992 (111th Congress).
 Rubio’s DREAM Act Gamble, U.S. News and World Report (June 12, 2012).
 8 U.S.C. §1623.
 Development, Relief and Education for Alien Minors Act of 2010, Congressional Budget Office Cost Estimate (Dec. 2, 2010).
 New York State Senate Resolution J.3531, Urging the New York State Congressional delegation to enact the federal DREAM Act (Mar. 9, 2012).
Blake Chisam is a Partner at Fragomen, Del Rey, Bernsen and Loewy, LLP, a global business immigration law firm with offices in 39 countries. Previously, Mr. Chisam served as Democratic counsel for the House Immigration Subcommittee and Chief Counsel for the House Ethics Committee. Patrick Shen is also a Partner with the Fragomen firm and was the Republican chief immigration counsel for the Senate Judiciary Committee when that committee, under a Republican majority, passed the Development, Relief and Education for Alien Minors (DREAM) Act by a margin of 16-3.