Obama's deferred prosecution program for illegal immigrants

Backed by attorneys and a state lawmaker, Daniel Rodriguez explains Thursday why he intends to take advantage of the federal deferred prosecution program for illegal immigrants despite the risk that a change in administration could result in his application being used to deport him. (Capitol Media Services photo by Howard Fischer)

Howard Fischer

Arizonans who apply for the president’s deferred prosecution program for some illegal immigrants could end up having the information they provide later used to deport them, some attorneys warned Thursday.

The lawyers, all specialists in immigration law, announced they would be providing free legal help through community organizations around the state to those who would qualify to be allowed to remain in this country for the time being. That generally includes those who were brought here before turning 16 and are not yet 30.

But each attorney who spoke at a Phoenix press conference said he or she will not specifically advise anyone who seeks help to apply.

“There is absolutely a risk,” said Regina Jefferies — the biggest of which is that Barack Obama will lose the election in November and Mitt Romney will rescind the directive that created the program.

And Jefferies said it is the job of lawyers to explain that risk, along with possible benefits, allowing those affected to make their own decisions.

But Jose Penalosa said he thinks it’s a risk worth taking.

Penalosa said he doubts that Romney would immediately repeal the program. And even if a new president did, Penalosa said the sheer number of people involved would make deportation proceedings unlikely.

And Daniel Rodriguez, who admitted to having been brought to this country illegally as a 7-year-old, said he intends to apply despite the danger.

“Every day I take a risk,” he said. “I take a risk going to school, I take a risk hanging out with my friends, I take a risk in everything that I do because anything can eventually lead to me being deported. So this is not necessarily a new or greater risk for me.”

The Obama administration announced last month the government will be using its discretion not to pursue those who are under 30, arrived in this country before turning 16, have no felony record or serious misdemeanors, have resided here continuously for at least five years as of the date of the announcement, and are currently in school, have graduated from high school or obtained an equivalency diploma, or are honorably discharged veterans.

Those eligible can seek what amounts to a two-year deferment of any prosecution for being in this country illegally, a deferment that is infinitely renewable. They also will be given permission to work legally in the United States.

Homeland Security officials pegged the number eligible at about 800,000. But the Migration Policy Institute, working with the guidelines as announced by the administration, figures the number at closer to 1.4 million, with 50,000 presumed to be in Arizona.

The move falls short of the DREAM Act — short for the Development, Relief and Education for Alien Minors Act — which Congress has so far failed to approve. That measure actually would provide a path to citizenship for those brought to this country as children if they meet other qualifications.

“Deferred action is not the DREAM Act,” Rodriguez said. “But it’s a step in the right direction.”

The attorneys called the press conference Thursday amid concerns that some who might qualify for the deferred prosecution program may be getting bad legal advice.

One of the ongoing problems in the immigrant community is that people hold themselves out as “notarios” or “immigration consultants,” offering legal advice — for a fee. But neither group is entitled under Arizona law to provide legal help.

“Notarios are taking advantage already of our students and our dreamers,” said Chrstina Ortecho.

“Some of the abuses that we see are people buying letters saying, ‘I’m eligible,’” she said. “No letter that just has letterhead on it and signed by anyone is going to be valid with immigration services.”

Ortecho, who is the immigration attorney for Friendly House, a Phoenix social services organization, said the idea of the program by the attorneys is to work with other community groups that do not have immigration specialists on staff so they also can provide free legal help to clients. And some of that help they need, she said, is whether to apply for the deferred prosecution program — and do that “not based on what somebody has told them, but what is the actuality of their situation.”

She said all lawyers wrestle with the question of what advice to give those who seek their help, especially with the inherent risks.

“I think that what we have to say is ‘This is a potential for a risk’ and ‘This is a potential for a benefit,’” Ortecho said.

“And once that youth is informed of that, they are going to make their own decision,” she explained. “Our job as attorneys is to advise and give both sides, risk, benefits. And then ultimately the client ... would decide, ‘Is it worth the risk for me to apply right now?’”

Penalosa said that the amnesty program offered more than two decades ago had a confidentiality provision which prevented immigration officials from using any information provided in subsequent deportation proceedings.

“Unfortunately, in this directive from the president, we don’t have those confidentiality provisions,” he said. And Penalosa said Romney, if elected, is entitled to revoke the program.

He said, though, that the popularity of the program may prevent that from happening.

“I think, if anything, he’s going to have to build upon this,” Penalosa said.

Romney has provided little guidance on what he would do.

During primary debates, he said he would not sign the DREAM Act as proposed but would support something focused on veterans.

And the day that Obama announced his plan, Romney criticized the decision — but only because it is a policy that can be reversed by subsequent presidents.

“I’d like to see legislation that deals with this issue,” he said, saying he agrees with Sen. Marco Rubio, R-Fla., that there needs to be a long-term solution.

“If I’m president, we’ll do our very best to have that kind of long-term solution that provides certainty and clarity for the people who come into this country through no fault of their own by virtue of the action of their parents,” Romney said.

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