Multi-American | How immigrants are redefining 'American' in Southern California

You’re too old for deferred action – now what?

A young man signs a petition during a deferred action informational event in Houston, Texas, June 20, 2010
A young man signs a petition during a deferred action informational event in Houston, Texas, June 20, 2010
Photo by Neighborhood Centers/Flickr (Creative Commons)

It's been more than a month since President Obama announced that his administration would not pursue deportation for some young undocumented immigrants, instead allowing them to apply for deferred action, which would give them temporary legal status and relief from deportation.

If they meet certain criteria, including that they are no older than 30, have a clean record and have been in the United States continuously for at least five years, undocumented young people who arrived in the country before age 16 could be eligible to stay on a renewable temporary basis, and to apply for work permits. U.S. Citizenship and Immigration Services officials were tasked with creating a process to accept applications. And as the clocks ticks toward implementation in August, in spite of challenges and concerns about the lack of a permanent solution, many of those who could qualify are hopeful.

The same can't be said for young people who could otherwise qualify, but are over 30. Referred to by some immigrant advocates as "elder Dreamers," many were college undergrads when the original Development, Relief and Education for Alien Minors (DREAM) Act was introduced in 2001. More than a decade later, although a version of the bill is still pending, they have aged out of what relief they can obtain from the new deferred action policy as it stands now.

If you arrived in the U.S. as a minor, don't have a criminal record, have lived here most of your life but are now 31, 32 or older, what to do? Is there any relief on the horizon? Perhaps, says Alma Rosa Nieto, a legal expert for Telemundo and an immigration attorney in Los Angeles.

M-A: As we move toward the beginning of an application period for deferred action, there are some young people who might otherwise meet the criteria but are too old, since 30 is the cutoff. Some were college students when the original Dream Act was introduced; some have aged out of this option as well. What other options might they have at this point?

Nieto: This deferred action is an affirmative procedure. When it comes to immigration laws there are both affirmative and defensive procedures. These people have aged out and it appears they cannot apply affirmatively. However, we are still waiting for the rules from immigration. I am hopeful that maybe they will say “these people have aged out, but there will be a subclass.” I am still telling people not to write themselves off. Let’s wait until we see the rules.

Defensive applications are filed before an immigration judge after individuals are placed in removal proceedings. Someone in these types of proceedings may ask the government to exercise their prosecutorial discretion and administratively close the case. If a case is administratively closed, the individual is not required to leave the country but is not granted lawful permanent residency.

M-A: Might prosecutorial discretion be an option? It seems there have been few cases granted, though – how well is it working?

Nieto: Prosecutorial discretion is an option for individuals whose removal is a "low priority" for the government. Unfortunately, it appears that the definition of "low priority" differs depending on the location of the government office reviewing the request. Locally, my office has a good rate of approvals but I know attorneys in other parts of the country are not so fortunate. We don’t like the numbers nationwide.

I would say that maybe, out of every 10 of my cases, we have been able to get prosecutorial discretion in about seven or eight in the last few months. These are people who came to us, clients who were either in removal proceedings or had already been ordered removed.

There was a woman who had just had a baby. She had an order of removal she was not aware of because of fraud committed by a notary. ICE picked her up in June, and then Obama announced prosecutorial discretion. She was out within two days.

M-A: But basically, right now it looks like these young people who don’t qualify for deferred action might have to wait to get into proceedings in order to try for prosecutorial discretion, correct?

Nieto: Correct, prosecutorial discretion is a defensive move that can only be executed in removal proceedings. At best an individual will get a work permit, which will allow him or her to apply for a social security number and state issued identification, but this is not something that currently will lead to permanent residence or citizenship.

M-A: So in a nutshell, if someone is over 30 but thinks they otherwise might qualify for deferred action, is there anything they should be doing or preparing for now? Or should they just wait and see what happens next?

Nieto: They can gather all the documentation that they would otherwise need to apply as we await government guidance on the application process.

Read a previous Q&A with Nieto on the rights of crime victims who are in the U.S. illegally.