DAPA: Many unanswered questions will result in endless litigation

“We expect people who live in this country to play by the rules. We expect that those who cut the line will not be unfairly rewarded. So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes -- you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.” These are the exact words of President Obama in granting amnesty to millions of illegal aliens who are parents of children who are American citizens or legal residents in his speech on November 20, 2014.

Is not the President contradicting himself by saying that we expect people “to play by the rules” and that “those who cut the line will not be unfairly rewarded”, and yet grants amnesty to those who do not play by the rules or who cut the line?

We participated in an information seminar conducted by USCIS high officials on the implementation of the Obama amnesty, aka Deferred Action for Parental Responsibility (DAPA). There were many unanswered questions from the listeners that will result in endless litigation.

That is what happens when there is no discussion and debate on an immigration law, unlike what happens when Congress enacts a law, lamented a Caucasian immigration lawyer.

The most important requirement for DAPA is that the parent must have a qualifying relative, namely “children” who are American citizens or legal residents. Does the term “children” cover illegitimate children, stepchildren, or adopted children? If it does, the illegal alien can quickly father a child out of wedlock, or marry a woman with children born in the U.S., or adopt a child who was born in the U.S.

Must the child be in the U.S.? What if the U.S. born child was brought out of the country by his mother who was deported, is the child still a qualifying relative? Suppose the U.S. born child is already dead, is the child a qualifying relative? Suppose the legal resident child turns out to have obtained residency by illegal means, does the child still qualify?

The amnesty announcement says that the applicant for DAPA benefits must have been in America for more than five years. Does it mean five “continuous” years? Is the applicant who traveled abroad but returned within the five year period eligible for benefits? What is the maximum length of time abroad permitted for the alien applicant to remain eligible?  If the applicant was deported but reentered the U.S. illegally, is the applicant still eligible?

Can a DAPA applicant travel abroad after applying for benefits and then return?

The applicant must “pass a criminal background check”. Does it mean that the applicant never committed any criminal offense in the United States only or anywhere in the world? Do traffic violations which are also considered “offenses” like speeding and drunk driving disqualify the applicant?

Does the requirement of “good moral character” apply to DAPA applicants? If not, then there is a denial of equal protection to aliens seeking immigration benefits like naturalization or voluntary removal.

What is the effect on DAPA applicants of Section 212 of the Immigration and Nationality Act which declares certain aliens inadmissible to the United States and Section 237 of the Act which declares certain aliens deportable?  If these statutory provisions are not imposed on DAPA applicants, are they not being given preferential treatment over non-DAPA applicants for admission or on lawful residents who have committed deportable acts, thereby triggering equal protection challenges?

How can a DAPA applicant challenge the denial of an application? What is the agency to whom the applicant may appeal? Is there judicial review? What are the time frames for an appeal or judicial review? What are the fees? What is the standard of review?

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to “The Tipon Report”, the wittiest, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to this article.)