January 25, 2018

“And this is how it goes. For more than 15 years.” Finding resolution for DACA, Dreamers

We all have an opinion. We all agree that there is a problem, but it is critical to explore the “who,” the “what,” and the “why,” before we can tackle the “how.”

The term “Dreamer” refers to the broad category of individuals who were brought to the United States as children. They may have entered illegally, or they may have entered legally, (with a visa) but remained in the U.S. beyond the time permitted. In 2001, Congress first took notice of this large, and growing, number of foreign nationals – young people who had no fault in circumventing immigration law – and introduced the Development, Relief and Education for Alien Minors Act (DREAM). Again and again, this bill, and subsequent versions of it, failed to pass in Congress. While the legislation did not take root, the name “Dreamer” did. Estimates put the number of Dreamers at upwards of 3.5 million. While most hail from Mexico and Central America, there are, in fact, Dreamers from countries around the world.

DACA recipients are a sub-set of Dreamers. In 2012, amid growing frustration, former President Barack Obama implemented, by Executive Order, a program called Deferred Action for Childhood Arrivals (DACA). Individuals who qualified were given employment authorization and permission to remain in the United States temporarily. To meet the requirements of the program, individuals must have been under age 31 on June 15, 2012; arrived in the U.S. before the age of 16; and, lived in the United States since June 2007. Applicants for the program were required to present evidence to meet these conditions, as well as proof that they had completed or were enrolled in school. DACA applicants were subject to background checks, and those with felony criminal convictions or multiple misdemeanor crimes were not eligible. Estimates place the number of DACA recipients at 700,000 to 800,000.

On September 5, 2017, President Donald Trump announced an end to the DACA program, as of March 2018. Because the program was originally implemented by Executive Order, the President could terminate the program via the same method. President Trump urged Congress to act: to introduce, and pass, legislation to help DACA recipients/Dreamers obtain long-term immigration status in the United States. To do what Congress has been unable to do for more than 15 years.

Most Americans (polls hover around 85%), and most in Congress, agree that we need to help these childhood arrivers. These young adults have been educated here, have families here, and have built lives for themselves here. They are doctors, students, engineers, mothers and fathers. Arguably, they are Americans in every way except the place that they were born and the decision of an adult to circumvent U.S. immigration law on their behalf, without their knowledge or consent. The rallying cry is that it is not moral, or right, or fair, or American, to deport these young people from the only country they have ever known. This is our collective “why.”

The “how” – that’s the sticking point. How do we help them? Should we give them temporary status? If so, for how long? How would someone qualify? Is there a date by which applicants would have needed to enter the U.S.? What is that date? Do we give them a green card? A regular green card, or a green card with conditions attached? What conditions? Would they be eligible for U.S. citizenship? When? And on and on . . .

And with each question, more questions are generated. And with each point and counterpoint, legislators attach bargaining chips – some totally unrelated to the issue at hand – as a way to court Congressional votes, but actually serve to lose supporters. And this is how it goes. For more than 15 years.

What is absolutely paramount to the debate is this basic understanding: those who enter the United States illegally cannot change their illegal status. While there are some very limited exceptions, this is the general rule. An unlawful entry can never be fixed – not through marrying a U.S. citizen, not through having U.S. citizen children, not through living in the U.S. for decades. One may understandably argue that this is a consequence of breaking U.S. immigration law. However, our legal system generally attaches harsh consequences to intent, and realizes that children cannot have the intent required to be punished for their actions. These Dreamers cannot do anything, under current law, to become legal. They cannot “fix” their status. They can only wait for Congress to do so.

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Practice Areas

Immigration Law