DEFERRED ACTION FOR INDIVIDUALS WHO CAME TO THE U.S. AS CHILDREN
On June 15, 2012, the Obama Administration released a memorandum in response to nationwide calls for an alternative path to citizenship for individuals that were brought into the country as children.1 Though not LGBT-specific, “deferred action” may provide some assistance to transgender individuals that came to the U.S. as children and meet the other eligibility criteria for deferred action. However, there are also several areas of concern with the new policy adopted by the Department of Homeland Security. For instance, the eligibility criteria is very narrow and will likely only apply to a small subset of people. To seek deferred action, the following criteria must be met:
• Came to the U.S. under the age of sixteen;
• Has lived in the United States continuously for at least five years before the date of June 15, 2012, and was present in the U.S. on the date of June 15, 2012;
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• Is not above the age of thirty.2
One of the major areas of concern with deferred action is that it is not a pathway to citizenship, as many immigration advocates had hoped. Instead, individuals that meet the above criteria, including members of the LGBT community, might be able to use deferred action as a way to temporarily slow down the removal process and/or receive work authorization during the period of deferred action. The memo clearly states that the new policy does not confer a “substantive right, immigration status or pathway to citizenship.”3
Furthermore, even if someone qualifies for deferred action, the memo only encourages the exercising of “prosecutorial discretion,” meaning that cases will be reviewed on an individual basis, giving the Department of Homeland Security wide latitude in deciding who should receive relief and who should not.
The National Lawyers Guild strongly suggests seeking the advice of an experienced immigration attorney before considering submitting an application for deferred action because, in some cases, it could jeopardize an individual’s immigration case.
U.S. Department of Homeland Security Memo from Janet Napolitano Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. Last visited June 13, 2013. ↩