The U.S. immigration department maintains miscellaneous amnesty regulations that shield political refugees and asylees. In comparison, administrative amnesty refers to specific executive policies that give protections to individuals who originally entered the country illegally. The foremost example of such a law is the Deferred Action for Childhood Arrivals (DACA).
These laws are passed through executive (presidential) means rather than through the immigration department.
Unlike other amnesty laws and policies, DACA does not deliver pathways for the individual to gain citizenship. It also does not provide the individual with a change in status or a switch to lawful immigration status. Rather, the provision delays removal (deportation) actions for those who qualify.
Who Qualifies for Deferred Action?
Many qualifications must be met for an applicant applying for deferred removal action. These include:
- Must be no older than 31 years of age as of June 15, 2012
- Must have entered the U.S. before they were 16 years old
- Must have lived in the U.S. since June 15, 2007
- The individual must also be physically present in the country from June 15, 2012 (and also at the time they are requesting deferred removal)
- Have a spotless criminal record (no felonies, no significant misdemeanors, less than three misdemeanors)
- Lawful immigration status (if any) must have expired by June 2012
As DACA is aimed at kids and younger people, the applicant must also be in school at the time of petition or have already graduated from high school. Military service may be considered as well.
Can Administrative Amnesty Be Refused?
Applications can be rejected if it is discovered that the individual doesn’t satisfy the above requirements. Any instances of deception or trickery in an amnesty application may be met with harsh penalties for the offender. Therefore, the applicant must consider this carefully when applying for administrative amnesty.
Cancellation of Removal
Periodically, the U.S. Congress will allow an “amnesty” for undocumented immigrants (also called illegal aliens)—that is, a pardon for unlawful status and a pathway to legal permanent residence (a green card).
Such an amnesty program was proposed in the late 1980s, for instance. The requirements included that applicants demonstrate they had lived or worked in the U.S. for a specific time and had a good moral character. They first acquired temporary status, then, after 18 months, could become eligible for green cards, provided they showed that they could speak English.
In recent years, U.S. lawmakers have offered various bills offering amnesty-like paths to a green card. Congress is considering immigration reform, including a path to citizenship for undocumented individuals, but this is far from a done deal.
In the meantime, some current regulations might permit something similar in rare cases but not a mass amnesty.
A remedy called Non-LPR Cancellation of Removal permits non-citizens who have already been put in removal (deportation) proceedings to ask the judge to bestow a green card, provided that they have been living (“continuously physically present”) in the U.S. for at least ten years; their deportation from the U.S. would compel “exceptional and extremely unusual hardship” to qualifying relatives, who are U.S. citizens or lawful permanent residents (LPRs), they have “good moral character,” and they have not been convicted of specific crimes or broke specific laws.
This cannot be applied affirmatively, however. One must be in immigration court proceedings first, probably either after an arrest by U.S. immigration authorities or rejection of some other form of immigration application.
What Is DACA?
A program temporarily provides for the deferred deportation of certain individuals who came to the U.S. as minors and meets several guidelines (known as Deferred Action for Childhood Arrivals or DACA). This is not a law but an Executive Order executed by President Barack Obama. Eligible applicants obtain a U.S. work permit.
In September 2017, the Trump Administration announced its intent to end this program; the courts partially blocked this action. The Biden Harris administration tried to bring DACA back (along with proposing legislation that would offer a long-term solution); then, a Texas court stopped all new DACA applications. Therefore, submitting a new DACA application is impossible (although renewals remain an option for those already holding DACA).
What Is Persecution?
To persecute means to harass, penalize, harm, torment, or otherwise cause someone to suffer physical or psychological damage.
U.S. immigration law does not list specific examples of persecution that would qualify someone for asylum or refugee status. Nevertheless, from the regulation created through court cases, we know that it can include such deeds as threats, violence, torture, improper imprisonment, or denial of fundamental human rights or freedoms.
Historically, for instance, the need for asylum or refugee status has been identified in cases where a foreign government has:
- Detained and tortured political dissenters or supposed undesirables
- Fired weapons on protesters
- Committed genocide against a particular race
- Made certain that members of a specific religion were left out of the political process
Even if a foreign government stands by while someone else perpetrates acts of persecution (for instance, if the leaders are reluctant or incapable of exerting authority while members of a vigilante unit gang up on gays and lesbians or while members of a guerilla group endanger or kidnap individuals who won’t willingly join them), this can qualify as persecution, which would sustain a claim for asylum or refugee status.
Again, recognize that the persecution must be related to race, religion, nationality, membership in a social group, or political opinion, discussed in more detail below. For instance, violence against gays and lesbians is identified as persecution related to membership in a social group. But violence against an individual who has outraged a local lawbreaker does not have the required relation to one of the five grounds so that the victim wouldn’t be qualified for asylum or refugee status from the U.S. government.
The U.S. government acknowledged persecution based on gender (usually the “particular social group” category). This permitted some women to achieve asylum based on having experienced (or fearing they’ll be forced to undergo) cultural conventions such as female genital cutting, coerced marriage, or domestic violence. However, under the Trump Administration, this distinction was particularly rolled back.
Future Amnesty Possibilities
The probabilities of an upcoming amnesty or path to a green card depend on the U.S. Congress.
Beware of the many charlatans or fake attorneys who encourage immigrants to pay to apply when no such application exists. Whenever a new bill comes up in Congress, and its opponent’s reason is that it is an amnesty, the crooks tend to take the chance to start accumulating money and filling out fake “applications” on immigrants’ behalf.
Do I Need a Lawyer for Help with Administrative Amnesty Laws?
Mistakes or errors on an administrative amnesty application can doubt the applicant’s credibility and may cause further delays. You may wish to hire an immigration lawyer if you need assistance with any immigration issue.
Your attorney can provide valuable advice to guide you during the process. Also, if you or a loved one needs to attend a hearing before an immigration panel, your attorney can direct you toward the proper procedures to follow. Use LegalMatch to start resolving any of your immigration problems or concerns today.
