38.2 Deferred Enforced Departure.

(a) Historical Background .

Deferred Enforced Departure (DED) is a temporary, discretionary, administrative stay of removal granted to aliens from designated countries. Unlike TPS, DED emanates from the President’s constitutional powers to conduct foreign relations and has no statutory basis. (Because DED is not a statutory provision under the Immigration and Nationality Act it is not considered an immigration status.) The President designates DED for nationals of a particular country through either an Executive Order or a Presidentia l Memorandum.

DED was first used in 1990 and has been used a total of five times. Most recently, nationals of Liberia were designated under DED through September 29, 2002.

Once the President has signed a memorandum to the Attorney General directing him or her to extend the grant of DED status to nationals of a designated country in the United States, these individuals are then eligible for DED-related employment authorization.

Note:

DED, in use since 1990, was formerly known as Extended Voluntary Departure (EVD). EVD, in use from 1960 until 1990, was used by the Attorney General pursuant to section 103 of the Act.

(b) Effect on Immigration Status .

Eligible nationals in the United States as of the date required by the Federal Register are:

· Subject to deferral of deportation or removal for a period specified by the federal register notice;

· To be granted employment authorization valid for the same period; and,

· In the case of those who are eligible, released from DHS detention.

(c) Effect on Asylum Applicants .

DED is not considered to be a status under 8 CFR 208.14(c)(2) (applicant who is maintaining valid immigrant, nonimmigrant, or TPS). Therefore, individuals who are covered by DED (and are not eligible for asylum) must be referred pursuant to 8 CFR § 208.14(c)(1) unless they otherwise have valid status or parole at the time of decision, described in 8 CFR 208.14(c)(2) (valid immigrant, nonimmigrant status, TPS) or 8 CFR 208.14(c)(3) (valid parole). As a result, asylum officers should refer DED-protected applicants, as opposed to denying these cases, when they are not eligible for a grant of asylum and they possess no other form of immigration status.

(d) Eligibility .

In general, eligibility requirements and ineligibility bars are set forth in the Presidential designation of DED for each specific group of aliens. For example, the following DED eligibility criteria were set for Liberia:

In order to be eligible for DED, the alien must demonstrate that he or she is a national who was present in the U.S. by the date required in the Federal Register notice.

DED benefits will not be granted to nationals:

· Who are ineligible for TPS under section 244(c)(2)(B) of the Act;

· Whose removal DHS determines is in the interest of the U.S.;

· Whose presence, or activities in the United States, the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States;

· Who voluntarily returned to the designated country or his or her country of last habitual residence outside the U.S.;

· Who was deported, excluded, or removed prior to the date in the Federal Register notice; or

· Who is subject to extradition.

An applicant’s eligibility for DED must be determined on the basis of Form I-765 and supporting documentation.

(e) Forms .

Applicants must file Form I-765 , and Form I-765D, with the District Office or Suboffice that has jurisdiction over the applicant’s place of residence.

(f) Fees .

No fee is required for Form I-765 , when filed for employment authorization as part of the DED program. However, applicants who are required to be fingerprinted, as described below, must submit a fifty ($50) fingerprinting fee.

(g) Fingerprints .

Only certain applicants for DED-related employment authorization will need to be fingerprinted.

(1) Fingerprinting is not required for:

· Applicants renewing DED-related employment authorization who have previous FBI clearance from a prior DED application.

· Applicants previously approved for TPS.

Applicants who fall into one of these groups shall be considered eligible for DED- related employment authorization. Form I-765 must be immediately adjudicated, and if approved, the applicant must be issued an employment authorization document (EAD).

(2) Any other applicant for DED or DED-related employment authorization must be scheduled for fingerprinting at a local ASC. The District Director should not favorably adjudicate the DED or EAD applications until a fingerprint response is received from the FBI.

(h) Adjudication .

(1) Interview .

Interviews are optional and at the discretion of local policy. However, it is not anticipated that the majority of applicants will warrant an interview, as most will be able to demonstrate eligibility based on a previous approval for DED during the past year, or were TPS beneficiaries prior to the DED program. An interview is required for all applicants who do not submit documents, or present only an affidavit to demonstrate eligibility.

(2) Decision .

If the alien meets all the requirements set forth in the Presidential Proclamation, and lookout checks have been satisfactorily completed, approve the application.

(i) Employment Authorization, Form I-765 .

Applicants for DED-related employment authorization will file the Form I-765, Application for Employment Authorization, at the District Office or Suboffice having jurisdiction over the applicant’s place of residence. District Offices or Suboffices will adjudicate the forms, schedule the applicant for fingerprinting at an ASC (if necessary), conduct lookout checks, and issue employment authorization documents to approved applicants.

In EAD processing, I-688B cards should be issued under the “274a.12(a)(11)” code, and expiration dates should be keyed in as the date listed in the Federal Register notice. To obtain the proper software, and for other software issues, contact the INS Help Desk.

(j) Detention Issues .

Nationals who are eligible for DED must be released from DHS detention. Each office must immediately review the A-file of any national presently detained in their jurisdiction to determine eligibility for DED. The eligibility of a national encountered by DHS in a place other than a District Office or Suboffice should be determined immediately.