Immigration Reform Rally 2010, Washinton DC
(Editor's note: To protect the undocumented sources in this story, their names have been changed.)
While Bay Area residents are still evaluating the ramifications of last month’s federal immigration announcement, the Department of Homeland Security works to finalize the details - leaving advocates and eligible immigrant youth to weigh the benefits and risks of utilizing the new program.
For some in removal proceedings, the new policy is a lifeline, but for undocumented youth who are under the radar, the decision to apply may be more difficult.
The program enables undocumented immigrants who meet certain criteria to apply for deferred action - basically, permission to remain in the country despite deportability - for a period of two years, subject to renewal. Those who demonstrate economic need are eligible for work permits. Individuals in proceedings who believe they qualify can request a review of their case.
Oakland organizers and advocates have received the news with tepid approval. Centro Legal de la Raza and National Network for Immigrant and Refugee Rights have issued press releases praising President Obama’s decision, but highlighting its limitations. Both organizations call for national immigration policy reform.
“Immigrant workers, families, communities will not be safe and economically viable without legislated immigration reforms that provide fair avenues for legal status,” reads the NNIRR statement.
The June 15 DHS memo does not provide an avenue for legalization. It is neither a law nor an executive order, rather an extension of prosecutorial discretion - a critical part of U.S. law that ensures an agency’s authority to decide how to pursue a case and when to prosecute based on a priority system. This invocation of prosecutorial discretion is meant to better manage DHS resources by focusing them on high priority cases.
Immigration attorney Laura Polstein of Centro Legal de la Raza described a major criticism of the policy.
“The criminal bars are very broad and more stringent than those for green card applicants,” she said, explaining that the memo adds the category of “significant misdemeanor,” which as yet has no legal meaning. Crimes such as minor theft, DUIs and underage drinking will likely fall in that category.
“Right now, a DUI is a crime that does not make you inadmissible nor does it make you deportable,” she said. “A DUI wouldn’t preclude you from getting a green card.”
But it isn’t yet clear how such offenses will be treated under the new guidelines.
Polstein is concerned that the new category’s lack of definition will result in indiscriminate application.
“When they create a new category there is no case law attached," she said. "It is what they say it is."
Polstein also suggested that the new policy could have the negative effect of dividing the community of young immigrants into good and bad - with bad encompassing anyone who has had contact with law enforcement. This is especially problematic given that communities of color are over-policed compared to white communities, she said.
“When it comes to young people, we forget that citizens do have minor scrapes with the law and they are able to turn their lives around after that,” Polstein said. “It’s kind of a double standard.”
Another criticism of the program cites the limited effects of past memos. Last summer, Immigration and Customs Enforcement Director John Morton issued a memo on the use of prosecutorial discretion in maintaining the agency’s priorities. Low priority cases were to be reviewed, with the potential to defer deportation. Since then, only 2 percent of reviewed cases have been closed.
Despite this precedent, Polstein is optimistic. This announcement has more substance than last summer’s, she said. But others are disillusioned.
As a youth mentor at 67 Sueños - a migrant youth organization based in Oakland - Pablo Paredes works intimately with the young people most affected by this program.
“They know the history,” he said. “[ICE Director] John Morton hasn’t made a difference.”
Paredes described watching Obama introduce the new policy on TV with a room full of undocumented youth.
“There were tears in the room and there was a lot of anger. It was seen as political move and no real change,” he said. “We went from hope to anger really quickly in the room ... and a recommitment to keep pushing.”
Paredes said a major concern about the program is that it asks undocumented individuals to come forward without any guarantee that they won’t be deported.
“That’s a really risky thing to ask someone to do,” Paredes said. “There is no guarantee even if you qualify to the letter of the law. The question is: Is this a risk worth taking?”
For Elena, a 16-year-old student at Oakland Tech, the answer is no. Elena has lived in the U.S. as an undocumented immigrant since her parents brought her here at age 7. She said she believes she qualifies for the new program, but thinks it is too risky to apply.
“It’s not a law and therefore I don’t feel like it’s official,” she said. “I don’t trust it. I don’t know if I’ll end up being deported. I want to finish high school.”
Elena said she does not know anyone who is going to apply.
But 22-year-old University of California, Berkeley, student Paulina, who came to this country at 15-years-old, said the benefit of a work permit is worth the risk. She and several of her friends believe they are eligible and will likely apply - but not until after the November election.
“If Obama gets elected [we] will apply," she said. "If Romney is elected, [we] will think about it."
For many undocumented students like Paulina who are struggling to pay tuition, a work permit could make a real difference.
“The things students need to be successful are housing, food and basic necessities,” said Peralta Community College District Trustee Abel Guillen. “To the extent that this initiative will allow students to get employment and come out of the shadows it will allow them to be successful.”
In California, legislation allows undocumented students to pay in-state tuition and apply for private financial aid and certain types of state aid. But for those who are not eligible for aid, a work permit can be vital, explained Erica Romero, executive director of Western States Legislative Affairs for the Hispanic Association of Colleges and Universities.
Polstein agrees that the program will have a positive impact for many, but while deferred action does offer a measure of protection and has clear benefits - like a work permit, drivers license and social security number - the status is ultimately insecure, she said. Deferred action is a legal limbo, not a solution, but the policy may eventually carve a path to legalization.
“On a case-by-case basis, deferred action can be revoked. A criminal conviction could result in deportation … additionally the whole program is precarious. A future administration could revoke it," she said, adding that the probability of the whole program being revoked is unlikely.
She also noted that the cost of re-applying and renewing the work permit - currently $385 every two years - must be kept in mind.
Paredes said he believes the program is significant despite its many limitations.
“To me, the big victory is not about the language of the memo or the status of youth afterwards,” he said. "It’s about what youth were able to do in a short amount of time when they got militant and grassroots."
Advocates agree that the policy is a positive step, but for the many young immigrants excluded by the eligibility criteria it’s not nearly enough.
Angelo, 25, is an undocumented student at Laney College. He is not eligible for the new program because he came to the U.S. at 17-years-old, after the cutoff at age 16.
“I’m about to graduate,” he said. “What’s going to happen with me?”
In order to be eligible for this program, a person must have entered the U.S. before the age of 16; be under 30-years-old; be in high school, have graduated from high school (or have a GED) or be in the military; have resided continuously in the U.S. for the five years prior to June 15; and not be convicted of a felony, a significant misdemeanor, multiple misdemeanors or pose a threat to national security or public safety. A biographic and biometric background check is required before deferred action is granted.
Centro Legal de la Raza urges anyone who is considering applying to consult a credible immigration attorney first.