President Obama’s immigration accountability executive action: How it affects the CNMI

On Nov. 20 and 21, 2014, President Obama announced his “immigration accountability executive action.” The Executive Order introduces a series of measures that are available to the President under his authority as chief executive of the United States. Some of these measures affect how immigration laws are enforced; how immigration benefits are processed; how to further encourage business innovation; and how to welcome immigrants to the United States.

Unfortunately, true institutional reform will have to wait for congressional action. Advocates from every shade of the political spectrum agree that the immigration system needs a thorough overhaul; they just cannot agree on how. The Executive Order addresses a limited number of issues that have been plaguing the immigration system. The first and foremost of these is the presence of over 12 million undocumented aliens, most of whom are working without status and without work authorization.

We will focus this column on how this Executive Order might affect the CNMI.

The DAPA Program
The President’s Executive Order creates a new program, DAPA (Deferred Action for Parental Responsibility), to address the issue of millions of undocumented aliens in the U.S. This program potentially safeguards from removal some aliens who are present in the CNMI without status. However, DAPA will not apply to all out of status aliens.

The program will only be open to individuals who:

• have a U.S. citizen (USC) or lawful permanent resident (LPR) son or daughter as of Nov. 20, 2014. There is no age limit for the child, who can be a minor or adult. It is unclear whether the child must reside in the U.S.

• have continuously resided in the United States since before Jan. 1, 2010. The CNMI became part of the U.S., for immigration purposes on Nov. 28, 2009, the effective date of the Consolidated Natural Resources Act. All aliens in the CNMI who were present in the CNMI on that date meet this aspect of the qualification. It is unclear at this time whether absence from the CNMI between those dates disqualifies an applicant. We suspect that short term absence, for medical treatment, family emergency or vacation, will not act to disqualify someone who is otherwise eligible. Longer absences may disqualify.

are physically present in the United States on Nov. 20, 2014, the date of the President’s announcement, and also at the time of applying;

have no lawful immigration status on Nov. 20, 2014. This is a critical issue. We have already received inquiries from members of the alien community with CW or parole status whether DAPA applies to them. The answer is NO. What is unclear is whether DAPA will apply to aliens who formerly had status, such as CW, and then fell out of status. We will have to wait for further guidance from USCIS on this and other unresolved issues.

are not an “enforcement priority,” which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators. As in many other instances involving immigration benefits, those with a criminal record will have a much more difficult time getting a benefit than those with a clean record.

• present no other factors that would render a grant of deferred action inappropriate; and

• pass a background check.

DAPA grants will last for three years. The DAPA program should be ready to receive applications within 180 days, or beginning on May 20, 2015. We foresee that DAPA will function much like humanitarian parole, where you need to have a grant of deferment that protects you from being removed from the United States, including the CNMI, but you also must obtain an EAD (Employment Authorization Document) in order to work legally. You will need to have a social security number and pay taxes.

It is important to understand that DAPA does not confer any status on an alien; rather, it is a promise by the U.S. government that ICE will not seek to remove you for three years. It is a life preserver, to keep you from drowning; it is not a boat that will take you to safe harbor. It is a temporary measure to keep families together. A lot can change in three years; you may qualify for a better status; immigration laws may change; DAPA may be renewable. So, if you qualify, we would urge you to apply when the time comes.

Words of caution:
• The President’s action has already been challenged in court, in the form of lawsuits seeking to prevent implementation of the program. These could wipe out the program or, more likely, delay it.

• The entire program could be reversed by the next President or by congressional action.

• DAPA, if you qualify, is a course of last resort, when no other lawful means are available to you and you want to remain and work legally in the U.S., including CNMI.

The Extended DACA Program
The original DACA (Deferred Action for Childhood Arrivals) was announced by then-DHS Secretary Janet Napolitano in a memorandum dated June 15, 2012, “Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children.” This memorandum formalized a policy of “deferred action” with regard to enforcement of immigration laws against many of the people who would have benefitted from the DREAM Act, which died in Congress again and again. The Executive Branch acted where the Legislative Branch was unwilling, or unable, to act.

As of July 2014, more than 580,000 undocumented aliens in the U.S. under the age of 30 have received protection from removal under DACA. When DACA was first promulgated in June 2012, there was a flurry of inquiries whether DACA would be applicable or, more correctly, useful to aliens in the CNMI. (We wrote about DACA in our column, “Has Continually Resided in the United States: Deferred Action and the CNMI,” Saipan Tribune, June 26, 2012, available at http://tinyurl.com/lzdrr5n.) The answer at that time was that, yes, DACA applied in the CNMI, but it was not useful to more than possibly a handful of young adults who had spent time in the mainland U.S. before coming to the CNMI. In the last two and a half years, our office did not entertain a single client who qualified under DACA. Here are the reasons why:

The original DACA contained the following qualifications for undocumented aliens residing in the United States, including the CNMI. The alien must have:

• Come to the United States under the age of 16;

• Continuously resided in the United States for at least five years preceding the date of the memorandum (June 12, 2012) and been present in the United Sates on the date of the memorandum (June 12, 2012) (emphasis added);

• Been currently in school, or graduated from high school, or obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States:

Not have been convicted of a felony offense, a significant misdemeanor office, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and

• Not be above the age of 30.

• Most otherwise qualified aliens residing in the CNMI could not pass the second requirement of five years continuous residence “in the United States.” The reason for this was that, for immigration purposes, the CNMI was not considered part of the United States until the effective date of the Consolidated Natural resources Act on Nov. 28, 2009. That means as of June 12, 2012, aliens continuously residing in the CNMI had only been residing in the United States for less than two and one half years. That was two and a half years too short to qualify for DACA. It was not until Nov. 28, 2014, that DACA (in its original 2012 version) would apply for those otherwise qualified.

However, the President’s executive order now has amended DACA and made it more broadly available by removing the age cut-off provision. Under the new DACA, applicants can be any age if they meet the other requirements; the eligibility date for arrival date in the United States is moved up from June 12, 2007 to January 1, 2010; and the deferral as well as work authorization will be granted for three years instead of two.

We applaud President Obama for his courage in enacting these measures despite the opposition of a hostile Congress. We must all remember that these are temporary measures to provide for a measure of stability while the United States comes to a resolution with regard to the many issues involving immigration policy. The programs are designed to eliminate the fear of removal and to provide an opportunity for aliens to keep their families together and work legally. The Executive Branch can defer action and decline to remove an individual, but only Congress can determine eligibility for permanent resident status or U.S. citizenship. We must await the action of Congress for a more comprehensive and permanent reform.

The authors are grateful to the Immigration Policy Center (www.immigrationpolicy.org) of the American Immigration Council, and to the American Immigration Lawyers Association (www.aila.org) for information in this column The USCIS website also has detailed information regarding DAPA (http://www.uscis.gov/immigrationaction) and DACA (http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca).

The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.