Prosecutorial Discretion for the Families of Deferred Action Recipients

On the eve of Thanksgiving, I think I’m doing what most Americans do this time of year – I’m counting my blessings.  I have so much to be thankful for – both in my personal life as well as my professional life.  In my professional life, I find myself extremely thankful for several new policies implemented by the Obama Administration the past year and a half in terms of prosecutorial discretion and now with DACA.  I’m thankful for the change in our Administration’s attitude about certain foreign nationals in this country.  I’m so excited that they see things the way I do:  Use the limited resources to target those individuals who would cause harm in our communities.

So, I almost hate writing this blog.  I don’t want to come across as the ungrateful. Sometimes, however, more only makes sense.  So, as I write this blog, please keep in mind that I am indeed thankful for what I have, but at the same time, I think our clients deserve more.

We’ve seen the approval numbers for DACA rising.  The latest update from USCIS shows that over 308,000 requests have been received and over 53,000 have been approved.

USCIS is getting an average of 4,827 requests a day.  They are approving requests from valedictorians, from nursing students, and from potential entrepreneurs.  There are thousands of young people who are already benefiting from DACA and many of them received that work permit because of help AILA members offered: help given through clinics, workshops, outreach, and individual attention.

What we can’t forget is that each of these applicants may have one or more family members that remain afraid and unable to work legally, or worse, are in deportation proceedings.  Many of our DACA clients are minors.  What is DACA worth if their primary caregivers – their undocumented parents – find themselves in deportation proceedings? While DACA is a good step forward, it unfortunately still leaves many out in the cold without recourse.

So why can’t the Obama Administration offer Prosecutorial Discretion (PD) to parents and family members of those granted deferred action under the new policy so that families can remain together? If a more humane immigration system is the goal, and targeted enforcement is the method that DHS is using, then offering PD to family members is a no-brainer.  They’ve already stated that tearing families apart isn’t in our country’s interest.

Think about it.  Current law and regulations already protect family members in other instances like U visas, VAWA cases, and even asylum.  So offering PD to family members of DACA recipients isn’t too far out of line with current policy in keeping families together.

For example, I have a case where USCIS denied adjustment applications for the beneficiary and family of an approved I-140 filed in April 2001.  Unfortunately, they filed their I-485 applications thinking they were 245(i) eligible, but they were not because they were not in the United States in December 2000. USCIS issued NTAs with the denial for the principal applicant, his wife, and a minor child.  ICE filed the NTAs with the Immigration Court in August of this year.  While I know I can protect the minor child under DACA, what am I going to do for his parents?  It should be a no brainer Prosecutorial Discretion case, but ICE statistics show only about 9% of cases have been deemed eligible for administrative closure under PD memos.  I’m stressed for my client because we don’t know what ICE is going to do.

So as I sit here and count my blessings this Thanksgiving, I can’t help but start writing my Christmas list.  Trust me, there are tons of things as far as immigration policy and law I would love to see next year, but if Congress can’t put those things into play, I’m asking for at least some form of PD for those family members of DACA recipients to keep in line with the current policy in keeping family members together.

Happy Thanksgiving!

by T. Douglas Stump