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Carlos Batara - Immigration Attorney

Halting Deportation Of Immigrant Youth And Children

– Posted in: DREAM Act & DACA

The deportation of young undocumented immigrants, brought to the U.S. as children before the age of consent, is one of the cruelest aspects of immigration law.

Their only hope is immigration reform.  Yet, it is unclear if immigration reform will happen this year.

Since there are many in Washington who oppose pro-immigrant reform, it seems likely a complete immigration packet will not be passed by Congress.

As a result, in my view, one program which deserves to pass is the DREAM Act.  This law is designed to help immigrant children.

A New Deportation And Removal Defense Proposal

Yesterday, the Washington Times reported that two U. S. senators, Illinois Democrat Richard J. Durbin and Indiana Republican Richard G. Lugar, stood up for the DREAM Act.

They asked the Obama administration to stop deporting immigrant students for now, while the DREAM Act is pending.

As a deportation defense attorney, I appreciate their actions.  It injects a fresh breath of air for deserving immigrant children, instead of the political posturing centered on immigrants with serious criminal convictions.

According to the senators, via the DREAM Act, immigrant students may soon be given a chance to earn legal status.  Deporting them now – during the interim period of political debate and compromise – is unfair.

I agree.

If the proposal is not acceptable, it is possible the government is opening the door for many immigration appeals.

It seems obvious that rather than merely accept deportation, when the law may soon change, filing an appeal with the BIA is a prudent course of action.

How President Obama reacts is a clue to the proposed legislation’s chance for success.  His actions will show how serious he is about reforming immigration laws and policies this year.

If Obama agrees with Senators Durbin and Lugar, then Janet Napolitano, head of the Department of Homeland Security (DHS), can instruct immigration officers to use their “prosecutorial discretion” to protect immigrant children.

Putting Deportation On Hold: The Deferred Action Option

The officers can put the children in a “deferred action” status if it appears they might qualify for legal status under the DREAM Act.

Deferred action does not transmit permanent resident status.

It would merely preserve the ability of immigrant youth to earn residency status if and when the DREAM Act is passed by Congress.

There is a possibility the proposal will not be passed.  If that takes place, the children could still be placed in deportation and removal proceedings.

Yet, there is no real harm to the government if the Durbin-Lugar proposal is accepted by Obama.

According to Department of Homeland Security spokesperson Clark Stevens, U. S. Immigration and Customs Enforcement (ICE) officers already use discretion on a case-by-case basis.  He suggests the Durbin-Lugar legislation is therefore duplicative and unnecessary.

While this is technically true, in my experience as an immigration lawyer in Riverside, I’ve learned the government tends to relunctantly exercise discretion in favor of immigrants.

In short, as Stevens also pointed out, the issue of undocumented immigrant youth shows the need for comprehensive immigration reform. Instead of loose strands of immigration policy here and there, the administration needs to put together a coordinated program for immigrant children and adults.

For innocent immigrant children, who deserve a chance to become lawful residents and U. S. citizens, immigration reform cannot happen soon enough.

Without reform, many of these children will remain in limbo – a status several may never surmount. And that’s not only bad for the youngsters, but also for the vibrancy of our economic and social systems.

American can – and should – do better.

By , Immigration Law, Policy, And Politics