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I went to bed last night mentally doing a checklist of everyone I know who qualifies and does not qualify under the President’s immigration action. As a community advocate and formerly undocumented immigrant, the word that most aptly describes last night is “bitter-sweet.”
While the announcement is not enough, we do need to celebrate our victories, and what change this temporary reprieve will bring to so many members of the community. However, I am also frankly terrified for those that it would not help, and what would happen in the absence of permanent changes.
I am making a quick reference checklist here for myself, family members and friends, similar to the one I made for the Senate immigration bill two years ago as a community advocate. These are simply my initial mental impressions of the various memos released by the DHS yesterday and available here. They are in no particular order:
- Expansion of DACA – The DHS will remove the upper level age cap on DACA so people who were above the age of 31 as of June 15, 2012 will not miss out. The date of entry was moved to January 1, 2010 from June 15, 2007, which means thousands more people who are newer arrivals would benefit. DACA will also be made into a temporary reprieve of 3 years, and the changes rolled out in 3 months.
- The New DAPA program – The DHS is tasked with creating a separate deferred action program for parents of U.S. citizen sons/daughters or LPR sons/daughters born before November 21, 2014. Parents must have resided in the U.S. since at least January 1, 2010, physically present in the U.S. on the day of announcement and have no lawful status, passed background checks, and are otherwise not ineligible (i.e. not an enforcement priority according to the new Johnson memo).
- The provisional stateside waiver (I-601A) will be extended to all family members eligible, which will now include adult sons and daughters, and spouses of LPRs. The provisional waiver is for the 3/10 year bar for unlawful entry, and requires an individual to prove “extreme hardship” to their U.S. citizen family member if they are deported. Usually, individuals who are trying to adjust their status in the U.S. but entered the country unlawfully, need to travel abroad to their home country for approval of a waiver. In 2012, the Administration started accepting “extreme hardship” waivers without requiring immediate relatives of U.S. citizens to leave and wait outside. Now this benefit is also available to the children and spouses of lawful permanent residents. This provision will require rule-making, so it will take some time to roll this out. The DHS will also engage in rule-making to expand the “extreme hardship” definition.
- Naturalization – Lawful permanent residents who are naturalizing can now pay via credit card and may qualify for fee waivers.
- Expansion of parole-in-place to immediate relatives of those U.S. citizens and lawful permanent residents who “seek to enlist” in the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or the Reserve of any of the five Armed Services). This benefit means that not only would the family members of those who seek to enlist not be subject deported–they may also be eligible to adjust their status in the future.
- Clarification of travel on advance parole by DHS so that people on DAP, DACA can travel abroad, and return to adjust their status in the U.S.
- Department of Labor (DOL) reforms: DOL will start issuing U visa certifications in three key areas: extortion, forced labor, and fraud in foreign labor contracting, and certify applications for trafficking victims seeking T visas. According to DOL, “These efforts will significantly help qualifying victims of these crimes receive immigration relief from the Department of Homeland Security (DHS) and access the range of victim services that they need to recover and rebuild their lives.”
- Reforms to the employment-based immigration system such as extension of OPT for STEM graduates, defining “specialized knowledge” for L-1B intracompany transferees, increasing H-1B portability by having USCIS define “same or similar” jobs, expanding the use of the “national interest waiver” and starting a new parole program to bring talented entrepreneurs to the U.S.
- Elimination of Secure Communities with a new program that targets immigrant communities: DHS is replacing the current “Secure Communities” program with a new “Priority Enforcement Program” to remove individuals convicted of criminal offenses. While it could be a marked improvement that moves us from a pre-conviction to post-conviction model and uses notification instead of detainers, unfortunately, this continues the entanglement of local law enforcement with immigration enforcement.
- Exclusions for parents of DACA recipients, undocumented workers and farm workers without families, and LGBT individuals less likely to have family members in the U.S. – While these exclusions are not categorical, and some parents of DACA recipients who also have U.S. citizen/LPR children would continue to benefit, the President’s immigration action does not specifically benefit those who do not have immediate family ties to the U.S. but are nonetheless, members of our community. It is also unclear at this point whether parents with final orders or re-entries after deportation would be eligible for the program. At this point it appears that they would be eligible since they are not priorities under the new memo.
- Visa backlogs – The announcement punts on the question of family visa backlogs that affect so many of us. However, there will be Presidential Memorandum to create an interagency group to look at “visa modernization” which has 120 days to prepare recommendations for further action.
- Limited expansion of DACA: It is great to see an expansion of DACA and elimination of the age-cap. It would have been nice to see public benefits such as ACA (healthcare) given to DACA recipients, as well as increasing the age of entry to 18 from 16 years.
- Employment-based immigration: DHS expects to finalize regulation on H4 visa holders soon but the rule will not be expanded to all H4 visa holders
- New enforcement priorities that continue to target immigrant communities: The President is rescinding past memos such as the Morton Memo, and issuing a new one, effective January 5, 2015. The new priorities are troubling and continue to criminalize immigrant and border communities, pitting good immigrants against bad immigrants, and separating families. I have listed the priorities below, and some initial thoughts on each:
Priority 1: Non-citizens convicted of aggravated felonies, suspected terrorists, convicted gang members, people apprehended at the border while unlawfully entering the U.S., will be a priority for removal unless they qualify for asylum or another immigration benefit.
Most troubling here is the use of language such as “suspected terrorists” without built in civil rights protections that discourage racial profiling. Additionally, people apprehended at the border will now be a top priority, even though many are coming to reunite with family. The prioritization of people with gang-related membership (without conviction) is very troubling, as law enforcement targets specific racial/ethnic groups as gang-affiliated.
Priority 2: Non-citizens convicted of three or more misdemeanor offenses, non-citizens convicted of significant misdemeanors (including DUI), non-citizens apprehended who entered after January 1, 2014; non-citizens who are perceived to abuse the visa waiver program should be a priority of removal unless they qualify for asylum or another immigration benefit.
Significant misdemeanors – a new legal fiction created by DACA – is here to stay, even though it has no legal foundation. The prioritization of people with a DUI, and their exclusion from DACA, is incredibly troubling, as is the prioritization of people who overstay their visas under the visa waiver program. Many of these people are immediate relatives of U.S. citizens and have much to contribute to the U.S.
Priority 3: Non-citizens issued final orders of removal after January 1, 2014 should generally be a priority for removal unless they qualify for asylum, or another immigration benefit.
Immigrants who dared to come to the U.S. in 2014 will now be subject to draconian enforcement.
- Increased border enforcement – DHS plans to fund an additional 20,000 CBP agents, and continue to trend towards further border militarization of the Southern border we share with Mexico.
- Ramped up interior enforcement through existing programs such as the Criminal Alien Removal (CARI) Program, which profiles Latinos for detention and deportation, and ICE raids, which will continue under these new announcements, despite right-wing talking points.
- Due process concerns: Expedited deportations and Operation Streamline will continue.
- No reforms to the existing detention system: Family detention will continue as the DHS opens a brand new center in Dilley, Texas, and arriving asylum seekers at the border will continue to be detained.
Finally, I just want to say that this is a deeply personal issue for me. I want to send some love and light to everyone who has worked hard for this announcement and emotionally drained from yesterday, and left out or have family members who are left out. I had a cab-driver yesterday, who unexpectedly started telling me about his son, and trying to figure out how to bring him here, just as I was getting out of the cab. I wish I had the time and opportunity to help him, and I hope he reunites with his son soon. We all deserve justice; we all deserve to be able to reunite with our families; and we most certainly deserve to be able to go home to safety–wherever that is.
If anyone has further thoughts, questions and concerns, feel free to comment or contact me.
For more than a year now, I have worked with the grassroots movement trying to secure broad administrative relief from President Obama on immigration. I co-authored the Not1More Blue Ribbon Commission Recommendations to the President in the Spring. Just a few months ago, we were quite unpopular amongst advocates in the Beltway, who were asking the President to delay issuing administrative relief on immigration, but since the midterm elections, we are all the rage, and invited to cocktail parties everywhere. The Democrats may have lost the Senate due to the delay, but now that the President has signaled his desire to take executive action on immigration, the Democratic base seems fired up and ready for change.
It is certainly a pivot in the right direction. My experience as an undocumented immigrant has prepared me well for this moment since something similar happened when we won Deferred Action for Childhood Arrivals (DACA). “Dreamers”—the beneficiaries of DACA—became the “cool kids” that everyone tried to hang with, while we tried hard to grapple with how it divided our community into deserving and undeserving immigrants. My experience as an LGBT individual is also quite similar. Straight people, for lack of a better term, want to celebrate with us at our parties now, and act like they are cool with us, which makes for rather awkward conversations. I have learned to take people at face value, revel in my accomplishments, and forget about them the moment the happy hour is over. Because we have much more important work to do.
Nothing has been announced yet, so if you are confused about all the noise on executive action, you need to consult the chart here. The delay is cause for protests, not parties as the President continues to deport more people than ever before. Moreover, family detentions continue, as the Obama Administration builds a brand new facility in Dilley, Texas to imprison mothers and children escaping persecution in their home countries.
If any announcement does come, remember to thank NDLON’s Not One More Deportation movement. Without NotOneMore, we would have a dead immigration bill with no momentum for change and frankly, no prospects for executive action. Remember to thank the undocumented workers, parents, and youth who stopped buses, infiltrated detention centers, put their bodies on the line to ask for this change, and endured many attacks from pro-reform advocates. Unlike what Julia Preston writes in the New York Times, it is not big money which has brought us here, but big, courageous hearts of those who have been directly impacted by our devastating immigration laws. This is an undeniable fact, and perhaps it would not make it into the history books, but you had better not forget it.
It’s also important to remember that whatever the President announces will mean thousands left out and left to fend for themselves. Many of them are among the ones who organized for this change in the first place. They are our friends, loved ones, and members of our community. We have to help those who qualify but we must also fill the gap for those who did not make it, and work to ensure that they are represented as well.
Those who opposed administrative action at any time should start redeeming themselves by doing applications for relief at no cost to applicants, and contribute some application fees while they are at it. But don’t hold your breath. You’ll notice that they are the first ones taking credit and trying to make money from this.
Got legal questions for me or need help? Hit me up here.