Some Details of the Dream Scheme Revealed in DHS Teleconference

By David North on June 19, 2012

Some additional details on the administration's new prosecutorial discretion amnesty were revealed in a Department of Homeland Security (DHS) teleconference yesterday afternoon. Most were depressing from my point of view, but a couple were encouraging (within the grim context.)

The session involved relatively short announcements about the new amnesty by three ranking DHS officials and a long question-and-answer session with immigration lawyers and other advocates.

Among the handful of cheering items were these: There will be no appeals system, according to USCIS Director Alejandro Mayorkas, who did most of the talking. (There were appeals systems in place for the legalization programs under IRCA 25 years ago, and some of those cases are still in the courts.) On the other hand, there may not be very many denials to appeal.

Another useful element, and ICE Director John Morton was quite firm about this: One of the "serious" misdemeanors" that will assure rejection is driving under the influence (DUI).

Mayorkas added that there will be no secondary eligibility for Deferred Action, the relief offered by this program, and described in an earlier blog by my colleague, Jessica Vaughan. Everyone applying for the program must do so individually, and the eligibility of one family member will not influence the decision-making about other family members.

In other words, the chain migration effects of this program will be delayed until, and if, other amnesties are created, a small consolation.

The immigration advocates in the telephone conference were already pressing for still more benefits, as might be expected. A couple of them wanted travel documents for the new beneficiaries and others lobbied for fee waivers, even though no fees have been established as yet for deferred action, though there are fees in place for the follow-on employment authorization documents (EADs).

At least two of the lawyers urged USCIS to rethink the DUI decision, and another pushed for changing the no-more-than-31-years-of-age rule to be no more than 35 for Central Americans. They were given little comfort.

The instant nature of the amnesty was underlined by Acting Customs and Border Protection Commissioner David Aguilar who said that CBP "assets" had encountered 11 potential beneficiaries of the Dream Scheme over the weekend, held them briefly, questioned them, found them eligible for the new program, and then let them go.

He was not specific about the nature or the place of the encounters, but one hopes that someone crossing the border illegally on June 16 or 17, will not be ruled to have been in the United States on June 15, one of the eligibility provisions of the new program. The 11 could have been picked up at Border Patrol checkpoints in the interior and met the new requirements, I suppose.

It may be general government speak, and I may be ultra-sensitive, but I found the use of the term "assets" to identify DHS law enforcement officers to be cold and dehumanizing.

There was much discussion of the rule against giving benefits to certain criminals β€” there must be some of them among the population to be amnestied. The rule, generally, is that one felony or three misdemeanors makes the alien ineligible. The three misdemeanors, however, it was noted by Mayorkas, must be related to three separate incidents, not three charges for different crimes relating to one or two incidents.

As the three DHS officials made clear, this is a work in progress. No decisions have been made about the application form to be used, for instance, or the fee, if any, to be charged.

The potential for defining eligibility generously, which I covered in a prior blog, was very much in evidence, not only in the discussion about how to count misdemeanors, but in Mayorkas' response to a question from one of the lawyers, who asked: In connection with the "in school" qualification, how many hours did the student have to be taking to qualify?"

"That's one of the things we're working on", the director said.

Another discouraging item was his reaction to the question about what is done to someone whose application is refused β€” does that person automatically go into deportation proceedings?

"Well, no, it depends" was the answer.

Mayorkas stressed that no applications from people not now in deportation proceedings will be accepted until 60 days after the June 15 announcement.