Immigration Law 101: Understanding Deferred Action

The term “Deferred Action” is particularly relevant in the context of the Deferred Action for Childhood Arrivals (DACA), a policy that essentially puts off any deportation efforts regarding certain children and adults who arrived in the United States at a certain age and have been residing in the United States for a specified period of time.. However, deferred action can also apply to other situations that affect adults as well.

Benefits and Drawbacks of Deferred Action

The Department of Homeland Security (DHS) may – as a matter of discretion – put off removing someone from the United States because the individual is not a threat to the U.S. or may be adding value by being in the U.S. Deferred action is a significant benefit because:

  • Even someone who is unlawfully in the United States is not considered “unlawfully present” during the period of deferred action
  • The DHS will not initiate removal proceedings against someone who has been granted deferred action status, unless the individual commits a crime or is otherwise deemed a threat.
  • Individuals granted Deferred Action can obtain a work permit during their period of deferred action.

It is important to note that being granted deferred action status does not mean that you have a lawful status in the United States. It also does not excuse any previous or later periods of unlawful presence. In addition, the DHS can terminate your deferred action status at any time. Conversely, DHS can also extend it as well. Keep in mind that having deferred action status is not a means to gain permanent residency or U.S. citizenship.

The Rationale Behind Deferred Action Status

The priority of the DHS is to remove non-citizens who may be threats to the health and safety of the U.S.  Prior to the Trump administration, the DHS was far less concerned about individuals who are in the country unlawfully but are not causing the country any harm or may be valuable, contributing members of their communities. These “lower priority” individuals may also face extreme hardship in their home countries if they are deported. Therefore, as an alternative to outright deportation, deferred status became a legal solution for many long-term immigrants in the U.S. and allowed the DHS to focus on individuals who may be threats or causing trouble in the United States.  Unfortunately, the Trump administration has chosen to adopt a very harsh enforcement policy by actively seeking to deport individuals who have been living in the US for many years, have several close U.S. citizen or permanent resident family members, and pose no threat to the community.  

Deferred Action and Prosecutorial Discretion

Deferred action and prosecutorial discretion are essentially synonyms. However, prosecutorial discretion can manifest itself in other ways as well. For example, authorities may arbitrarily choose to terminate or administratively close removal proceedings for “non-priority” immigrants. They may also grant stays to halt removal proceedings or simply decline to issue a Notice to Appear (which initiates removal proceedings).  However, under the Trump administration, prosecutorial discretion is being very rarely exercised.  

Even where immigration proceedings have already begun, you may still be able to request deferred action or other forms of prosecutorial discretion depending on the particular facts and circumstances of your case. Our experienced team of immigration attorneys at Saleh & Associates can help you with this process. Don’t wait—call today.

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Written by Saleh and Associates

Saleh and Associates

Anis N. Saleh is President and Managing Shareholder of the Miami firm of Saleh & Associates, P.A., where he practices in all areas of Immigration and Nationality Law, including extensive experience in employment-based & family-based cases, deportation & removal hearings, and federal litigation.