The decision by President Obama to expand the use of prosecutorial discretion in deferring INS action for certain young individuals is not something out of the ordinary. In fact, the use of prosecutorial discretion is an everyday occurrence at the immigration enforcement. It is a necessary tool which is vital in responsible enforcement and without which all would not be well. This view is also supported by Supreme Court in coming to its decision in Heckler v. Chaney, 470 U.S. 821 (1985).
The decision by the President to provide for deferred action process for young individuals who came to the U.S through no fault of their own, while seen to borrow heavily from the so-called Dream Act, does not necessarily mean that the Dream Act has passed intact through Congress. Actually, nothing could be further from the truth. The Obama administration is committed to the realization of the passage of comprehensive immigration reform including the Dream Act and this is seen as the first step towards achieving that. The passage of the Dream Act still remains necessary despite this use of prosecutorial discretion. This process does however not provide certainty of an individual’s immigration status. This certainty can only be conferred by Congress by exercising its legislative duty and offering individuals an avenue to permanent legal status.
One of the practical benefits of the new directive is that young people who were brought to the U.S through no fault of their own and who meet other eligibility criteria will now be considered for relief from expulsion/deportation from the country or entered into removal proceedings. It is also good to note that this directive is effective immediately and individuals who show that they meet the eligibility criteria will receive deferred action for not less than two years, subject to renewal.
While this directive is effective immediately, implementation of the application process by the ICE and USCIS is expected to be done within a period of sixty days. At the moment the issue is being explored by the USCIS and it is expected to be resolved in the coming weeks, being part and parcel of the implementation plan. Individuals are therefore advised to desist from submitting requests at this time. As of June 18, individuals got the green light to call the USCIS and ICE hotlines to have their questions answered as well as request for more information regarding the whole process.