Hope or Hype? Behind the Washing(ton) Spin Cycle of an Alleged Immigration Policy Victory

My inboxes and twitter feeds are inundated with so much spin regarding last Friday’s immigration announcement from the Obama administration that it feels like being in the middle of a washing(ton) machine cycle. For those of you in the dark, on Friday the Department of Homeland Security released a memo signed by Secretary Janet Napolitano, which gave very specific guidance to U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services, and Immigration and Customs Enforcement for how certain young undocumented immigrants, brought into the country under the age of 16, should have prosecutorial discretion exercised in their cases, on a case by case basis.

The specific group of DREAMers this could potentially apply to are:

  • those who entered the United States before the age of 16
  • those younger than 30
  • those who have resided in the US continuously for the five years preceding 6/15/12 and who were in the US on 6/15/12
  • those in high school, high school graduates, those with a GED, or those who were honorably discharged as veteran of  the Coast Guard or  the Armed Forces of the United States
  • Those who have not been convicted of  a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or  otherwise pose a threat to national security or public safety

For those that meet all of the above criteria and are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS), discretion should be exercised, again on a case by case basis, to prevent being put into removal proceedings or deportation.

For those that meet the above criteria and are in removal proceedings but aren’t subject to a final removal order, discretion will be exercised, on a case by case basis, and action can be deferred, not canceled, for a two year period which can be renewed.

For those who meet the above criteria and are not in removal and are at least 15 years old, some process which hasn’t been determined, will, again on a case by case basis, prevent an order of removal from being issued for two years, which can be renewed.

For those that meet the above criteria and have a final order of removal, some process will allow the case to be considered for deferral, regardless of age.

For those cases that are deferred U.S. Citizenship and Immigration Services can decide to give work permits (or not), if you can prove that a work permit is an economic necessity.


There is no guarantee of work permits. There isn’t even a process given for work permit applications. This is not an executive order and this was confirmed by Cecilia Muñoz, director of the White House Domestic Policy Council, who probably had her most honest moment since becoming part of the Obama administration when she appeared on Univision’s Al Punto with Jorge Ramos yesterday morning. This is not administrative relief. This is not legalization. It is not even a cancelation of pending deportations. At best it is an abeyance, at worse it is another memo on top of the previous memos, like the Morton Memo, which have not been applied (see my previous posts here and here).

And indeed the memo is just vague enough to allow for many to not have their cases deferred. A question that appeared over and over in @vivirlatino’s twitter feed following the announcement was how about the many DREAM activists who have been arrested in civil disobedience actions across the country? Would their arrests and charges on their record make them ineligible? Who are the national security risks that could be denied? Alleged “gang” members?

Also, if you request a deferral and are not in removal, meaning you are not on ICE’s radar, and are subsequently denied, can you then be put into removal proceedings? Are people at risk by asking them to out themselves on a mass basis to those that have the power to deport them? A fact sheet by the American Immigration Lawyers Association suggests yes.

It’s not that I enjoy being cynical and jaded. I wanted to be part of the excitement that was coursing through the immigrant advocacy and activist world like a jolt of electricity. I want to be proven wrong and I invite being proven wrong, but prove me wrong based on facts not backroom deals, sloganeering or approved talking points assuring funding and access to the beltway. I am thinking of the lives of so many people I know, friends and neighbors and the countless lives of people I don’t know. I remember the buzz that surrounded the DREAM Act vote and the overwhelming sadness when it failed. I understand the need for a victory. But I also understand the need for the Obama campaign to get an infusion of Latino support. Judging by the requests for me to send thank you messages to Obama, he may have gotten it. Just not from me. Not yet. Show me the changes in the numbers of cases deferred. Show me the work permits granted. Show me less petitions for young people being deported. Then I will eat my words or others will have to eat theirs.



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13 comments on “Hope or Hype? Behind the Washing(ton) Spin Cycle of an Alleged Immigration Policy Victory
  1. This is just another Obama promise. After the election, should he win, he will drop the whole thing and blame the Republicans. He’ll say anything to Latinos.

    He badly needs high Latino turnout because Florida is trying to purge the voter rolls. Without Florida he’s toast unless he can win the southwest and keep most of the midwestern states he won in 2008. Even then it will be close because he will probably lose VA, NC, IN and OH. (He’ll keep the western and northeastern states he won in 2008.)

  2. Very thorough analysis, Thank you. I agree with many of your points.

    I think the next two months (the 60 days required for said process to be put in place) will be interesting and very important for immigrant-rights groups to keep watch. At the very least, there should be a complete reversal of Dreamers that qualify under this ‘memo’ from being put into deportation proceedings. There shouldn’t even be a single ‘petition’ to help a Dreamer out of deportation.

    I think that should be a pretty clear sign of how serious DHS, ICE, etc is about this ‘memo’ or deferred action process. If in fact, no more cases come up of Dreamers being detained by ICE or put into removal proceedings, that should be good indication for those that can apply after the 60 days period.

    Obviously it’s not the Dream Act, but this has definitely changed the conversation IMO.

    You mentioned, “There isn’t even a process given for work permit applications.” But I just wanted to point out that in form I-765, or Application for Employment Authorization, there’s a specific category for individuals who’ve been given ‘Deferred Action’. I’ve read this ‘memo’ doesn’t grant Deferred Enforced Departure (DED) or Temporary Protected Status (TPS), but isn’t it (supposedly at least) granting that ‘Deferred Action’ category?

    Can’t wait to see what that ‘established process’ will be like.

  3. Thanks for commenting Erika. Yes, the next 60 days, as the process is rolled out and defined it will be very interesting to see what happens.

    As for your question re: the work permits. Based on the deferred action status yes, they should be able to apply, but the whole thing is so vague who actually knows. From the first rounds of prosecutorial discretion cases, there haven’t been a hell of alot work permits, which is why I think it should also be used as a marker, especially in light of the lack of legal status.

  4. While Obama’s immigration decision sounds great, it is only granted for 2 year years and then every undocumented younger illegal that came fourth becomes a documented illegal. It sounds more like he is gambling with Latinos to get votes.

  5. Hi Bryan. Not quite. As per the memo, if you are not in removal, there still isn’t a process for coming forward and even then you don’t suddenly go from undocumented to documented. In fact you don’t get legal status at all. What you get is either a suspension of your removal order or a deferral of your case for two years.

  6. I’m totally with you on this one.

    I’d like to celebrate, really I would, but I want to wait to see what this means in real terms. As we know (but seem to have completely forgotten since the announcement) previous prosecutorial discretion memos have had minimal effect in terms of slowing a record-setting deportation rate.

    Thank you for being clear-sighted enough to elucidate the doubts.

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  8. Thank you both for breaking down what this policy actually means and for your words reminding us that it isn’t time to break out the party hats and celebrate, but to keep pushing and to keep fighting.

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