"This is huge."
That;s how Laura Lichter, president of the American Immigration Lawyers Association, described a new program that gives some undocumented immigrants who came to this country as children the ability to live and work legally here for two years.
Starting today, U.S. Citizenship and Immigration will begin considering applications for deferred action by people who came to the United States before they were 16, are no more than 31 now, are in school, graduated from high school or served honorably in the military, and have not been convicted of a serious crime.
Immigration lawyers say client interest in the program has been enormous – more than 1 million people are estimated to be eligible — and expect to begin filing the first applications with CIS before the close of business today.
Still, lawyers stress that considerable uncertainty about the program remains. “There isn’t a body of case law or 10 years’ worth of policy memos to turn to,” Lichter said, describing the government’s decision to grant deferred action as “completely discretionary.”
Perhaps the biggest question mark is what happens after two years — or for that matter, in a few months, should a new administration decide to reverse the policy.
As Melanie Corrin, a senior attorney at the Joseph Law Firm in Aurora, Colo., pointed out, granting an immigrant deferred action does not give the person lawful permanent resident status — but it does give him or her employment authorization.
“What will happen to all these individuals who are given valid Social Security numbers if they lose work authorization?” she said. Or to students finally eligible for federal financial aid only to see it run out after two years of college?
Corrin also said questions remain about exactly what actions might make a person ineligible for deferred action. According to the government, if someone has been convicted of a felony, a “significant“ misdemeanor, or three or more other misdemeanors, he or she won’t be approved. Juvenile convictions — which are normally not considered in immigration proceedings — will be looked at on a case by case basis.
“In my mind, the definition is just vague enough to allow for concerns,” she said. “We want to make sure we’re not putting anyone in harm’s way.”
Immigration authorities have targeted criminals as a top priority for deportation, and Corrin’s fear is that people filing applications who have serious misdemeanors (for example, drunk driving) might find themselves instead in removal proceedings.
CIS on its website states that information in the applications won’t be disclosed to enforcement authorities “unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement.”
Lichter finds this somewhat disquieting. “By definition, any person considering applying is considering a pretty significant risk,” she said. “It’s like putting your hand up and saying ‘Here I am.’”
To Peter Asaad, the managing partner of Immigration Solutions Group in Washington, this underscores why prospective applicants should consult an attorney. “There are all sorts of situations for yourself or your family” that people may not understand, he said. “It has to be done correctly.” He also noted that there is no process for appealing a decision, though a person can reapply.
Both Asaad and Lichter also said they’ve found a significant percentage of clients who consulted them about the program have actually been eligible for other forms of immigration relief — ones that are permanent.
As for the fate of deferred action, Lichter predicted that the more people who apply and are accepted, the more difficult it will be to dismantle it later. “It’s like the corollary to the old saying,” she said: If you owe the bank $100,000, that’s your problem. If you owe the bank $100 million, that’s the bank’s problem.