Continue reading »]]>

The administration recently published a proposed rule that will help keep American families together. The “Proposed Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” is an effort to streamline the application process for many relatives of U.S. citizens currently eligible for a green card by minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States. The proposed rule is currently in its “comment period,” and advocates are encouraged to submit comments in support of the rule. All comments are due on June 1, 2012.

Why is this proposed rule important? Currently, thousands of persons who qualify for green cards must leave the U.S. to obtain their permanent residence status, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years because of a period of unlawful presence in the United States of more than 180 days. There is a family unity waiver available, but the way the law is currently implemented, the waiver can only be adjudicated overseas. Because the process can often take many months, many otherwise eligible applicants do not apply for their green cards, and choose to remain unauthorized in the U.S. rather than risk leaving the country and being unable to return.

Under the proposed rule change, spouses and children of U.S. citizens who apply for a green card, but need a family unity waiver to re-enter the United States will be allowed to apply for the waiver without leaving the U.S. This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country. Applicants would still be required to leave the U.S. before receiving final approval and their green card. But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.

The proposed rule does not change the eligibility standards for green cards or waivers. It does, however, mean that waiver can be adjudicated here in the U.S. so that the immigrant will know whether or not he or she will be able to re-enter the U.S. after receiving the green card, which would make a huge difference in the lives of many U.S. families. Allowing these family members to have their waivers adjudicated in the U.S. may save them from long, potentially dangerous separations from their families.

It is critical that USCIS receive many comments in support of the proposed rule. They need to know that there is overwhelming support from the American people for keeping families together and fixing this glitch in immigration law. Submit your comment by e-mailing it to uscisfrcomment@dhs.gov with “DHS Docket No. USCIS-2012-0003” in your subject line on or before June 1, 2012.

Photo by Olaru Radian-Alexandru.

Continue reading »]]>

The U.S. Border Patrol’s newly released strategic plan is a decidedly mixed bag when it comes to border security—just like the Border Patrol’s last strategic plan, released in 2004. On the plus side, both documents advocate an intelligence-driven, risk-based approach to border security which focuses on the greatest security threats. Both plans also call for disruption of the smuggling networks which bring unauthorized immigrants, drugs, and other contraband into the United States. On the down side, each plan embraces the simplistic “prevention through deterrence” mentality in which it is believed—or hoped—that heightened border enforcement will scare off unauthorized immigrants and smugglers alike. More broadly, both documents are a reflection of the federal government’s continued misguided emphasis on securing the territory between ports of entry, even though most smuggling now occurs through ports of entry.

To its credit, the 2012 plan is more precise that its 2004 predecessor in defining the security threat posed by smuggling. Specifically, the 2012 plan identifies transnational criminal organizations (TCOs) as “a significant cross-border threat to homeland security. These organizations control most cross-border trafficking in guns and illegal drugs, as well as an increasing percentage of human smuggling.” The latest Border Patrol plan is also more explicit and detailed than its 2004 counterpart in describing the sort of cross-jurisdictional, multi-agency approach to law enforcement that will be needed to defeat TCOs.

Nevertheless, the latest Border Patrol plan over-states the extent to which it departs from the past. For instance, the “risk-based strategic plan” of 2012 is contrasted with the “resource-based strategy” of 2004. Yet a central tenet of the 2004 plan was the use of “intelligence-driven operations” that would “target areas of greatest risk.” Likewise, the 2012 plan proposes to deal with “illegal entrants” into the United States through “a new Consequence Delivery System (CDS) that guides management and agents through a process designed to uniquely evaluate each subject and identify the ideal consequence to break the smuggling cycle.” Yet this “new” system is simply the old “prevention through deterrence” approach dressed up in new clothes. And it was a fundamental component of the Border Patrol’s 2004 strategic plan as well.

Herein lies the greatest weakness of the Border Patrol’s new plan. As it acknowledges, the U.S. Border Patrol is tasked with “securing our Nation’s borders between Ports of Entry (POEs) against all threats.” During the May 8 Congressional hearing at which the plan was unveiled, Marc R. Rosenblum, a Specialist in Immigration Policy at the Congressional Research Service, pointed out that “many of the most serious transnational criminal and terrorist threats to the United States may be more likely to exploit points of vulnerability at ports of entry (POE) and at northern and coastal borders.” In other words, sinking more resources into Border Patrol enforcement between ports of entry is not necessarily the best way to bring down the transnational criminal organizations which the Border Patrol wants to defeat.

As many border experts have pointed out, “securing” the U.S.-Mexico border will require a comprehensive, integrated, bi-national assault on the TCOs that smuggle immigrants and drugs into the United States, and guns and money out of the United States. TCO leaders must be put behind bars, and their money laundering operations shut down. Moreover, POEs must be modernized and adequately staffed, since this is where most smuggling is taking place. Building fences and chasing unauthorized workers through the desert will not do the job.

Photo by CBP Photography.

Continue reading »]]>

After ICE Director John Morton issued a memo last June outlining how and when ICE officials should exercise prosecutorial discretion in immigration cases, many were optimistic that the memo’s implementation would relieve backlogs and help the agency focus on higher priority immigration cases. Months later, however, folks are finding that one large group of people has limited access to this review process—immigrants without legal representation. In fact, nearly half of all immigrants in removal proceedings  appeared without legal representation in 2011, also known as “pro se.” While immigration attorneys often explain the effect of these prosecutorial discretion policies to their clients, pro se immigrants may be unaware that new policies are even in effect.

Unlike immigrants who have legal representation, pro se immigrants do not have access to information specifically directed at them explaining the exercise of prosecutorial discretion, how to obtain it, or what it means. This compounds the already serious problem that most pro se immigrants do not have access to information about what relief might be available to them. Moreover, whether or not they are aware of possible options for relief, they may be unaware of the implications of either accepting or foregoing an offer of prosecutorial discretion from ICE.

Underlying all of these deficiencies is a fundamental inequity—immigrants who cannot hire or find scarce pro bono attorneys are not entitled to government-provided representation in a deportation process that has devastating consequences, including separation from family for decades or forever.

To prevent pro se immigrants from falling through the cracks, immigration authorities can take a number of steps to ensure they understand what prosecutorial discretion is, how they can seek it, and what they should do after receiving (or not receiving) an offer of it. First, ICE should advise pro se respondents prior to reviewing their files and explain how to submit documentation for agency officials to consider. Second, if ICE declines to offer a favorable exercise of discretion, agency officials should inform pro se respondents how they can “appeal” the decision to higher agency officials. Third, when ICE offers a favorable exercise of discretion, the agency should provide information explaining the consequences of accepting such an offer. And finally, prior to approving a favorable exercise of discretion, Immigration Judges should affirmatively confirm that pro se immigrants understand these consequences.

By adopting these recommendations, immigration officials can help alleviate one of the most fundamental inequities of the removal process: that the government does not provide attorneys to immigrants who cannot afford one.

Photo by OtnaYdur.

*This blog is excerpted from a new report by Joan Friedland, entitled Falling Through the Cracks: How Gaps in ICE’s Prosecutorial Discretion Policies Affect Immigrants without Legal Representation.

Continue reading »]]>

The House Judiciary Committee sent the wrong kind of Mother’s Day message to women this week, proposing to roll back protections for victims of violence that have been in place even before the Violence Against Women Act (VAWA) was first passed in 1994. While the proposed amendments were discouraging in their own right, the fact they were targeted at immigrant women is an even sadder commentary on just how much some members of Congress will use any legislation as a vehicle for attacking and undermining the immigration system.

In this case, the vehicle was a bill providing for reauthorization of the VAWA. The Senate’s version of the VAWA reauthorization passed a few weeks ago with strong bi-partisan support, and included provisions that enhanced existing protections for immigrant victims.  In contrast, the House bill considered by the Judiciary Committee this week strikes at the heart of VAWA, stripping away confidentiality provisions that have always been critical to preserving the lives of immigrant  women and children abused by U.S. citizens or lawful permanent residents.

The bill goes further, however, increasing the requirements for U visas, a critical protection for undocumented women who have been the victims of many forms of violence and serious crimes. It also eliminates the ability to transition from U visa status to lawful permanent residence, a provision that has been in place for humanitarian reasons since the visa was created.

In its original form, the House bill rolled back protections even further, but passionate debate during the Committee hearing and the support of Congressman Ted Poe (R-TX), led to modifications of some aspects of the bill.  For instance, a provision that would have required applicants for a U visa to have reported their abuse within sixty days of the incident in order to qualify for a visa was stripped away.

But the bill that passed the Committee on a 17-15 vote (again with Congressman Poe as the sole Republican to vote against it), remains a jarring example of the cynicism of the current Congress and its failure to think logically about anything related to immigration.

Fracturing the bipartisan nature of the VAWA over immigration flies in the face of the history of the law. For example, the immigration provisions of the VAWA have always been notable for two reasons: (1) They were part of a broader framework of protections for combating domestic violence and other abuse that were enacted to protect everyone without regard to immigration status, and (2) they recognized that the immigration system created particular barriers for immigrant women and children who were often dependent on an abuser for legal immigration status.

As Zoe Lofgren (D-CA) and John Conyers (D-MI) pointed out in an Op-Ed in Politico, the stakes are enormously high for these women and children:

The VAWA was designed to protect all women and empower law enforcement to go after abusers. Of prime importance are protections for immigrant women — particularly vulnerable because of their dependence on spouses for immigration status. Abusers often use threats of deportation and permanent separation from children as powerful tools to control their battered wives.

The VAWA’s principal protection gives victims the ability to petition for their own immigration status. By letting women take control of their own lives and provide for their children, the law helps them leave abusive relationships and cooperate with police to hold perpetrators accountable.

The House Judiciary Committee took an enormous step backward this week by weakening VAWA protections.  It doesn’t matter that those protections were within the context of immigration law.  The committee fundamentally gave back power to abusers, sending a message to women everywhere that scoring political points on immigration is more important than protecting women from violence.

Continue reading »]]> Earlier today, the Department of Justice filed suit against Sheriff Joe Arpaio and the Maricopa County (AZ) Sheriff’s Office alleging a pattern and practice of discriminatory behavior against Latinos. According to the complaint, officers under Arpaio’s command targeted Latino drivers during traffic stops and neighborhood sweeps, and used ethnic slurs against Latino inmates with limited English proficiency in county jails. The suit, which was filed in federal court in Arizona, comes five months after the Department’s Civil Rights Division issued a report based on an extensive investigation that contained similar findings.

The federal investigation into the Maricopa County Sheriff’s Office (MCSO) was initiated to explore violations of the Civil Rights Act of 1964, which forbids recipients of federal funds from engaging in racial or ethnic discrimination. The investigation had already resulted in a previous lawsuit based on Sheriff Arpaio’s refusal to provide Justice Department investigators access to internal files. After the prior suit was settled and records were disclosed, the Obama administration released a report last December 2011 detailing the finding of its investigation. Once pre-trial negotiations broke down, the Justice Department filed a 32-page complaint containing extensive allegations of misconduct by MSCO deputies and Sheriff Arpaio himself. Selected excerpts from the complaint include:

• “MCSO supervisors involved in immigration enforcement have expressed anti-Latino bias, in one instance widely distributing an email that included a photograph of a Chihuahua dog dressed in swimming gear with the caption ‘A Rare Photo of a Mexican Navy Seal.’” (p.2)

• “[D]uring a crime suppression operation, two MCSO officers followed a Latina woman, a citizen of the United States, for a quarter of a mile to her home. The officers did not turn on their emergency lights, but insisted that the woman remain in her car when she attempted to exit the car and enter her home. The officers’ stated reasons for approaching the woman was a non-functioning license plate light. When the woman attempted to enter her home, the officers used force to take her to the ground, kneed her in the back, and handcuffed her. The woman was then taken to an MCSO substation, cited for ‘disorderly conduct,’ and returned home. The disorderly conduct citation was subsequently dismissed.” (p.11)

• “In another raid, a U.S.-born Latina was taken into custody for four hours to determine whether she was lawfully in the United States. In response to media inquiries about this incident, Arpaio was quoted as saying: ‘That’s just normal police work.’” (p.13)

• “Arpaio received a letter stating ‘[i]f you have dark skin, then you have dark skin. Unfortunately, that is the look of the Mexican illegals who are here illegally. . . I’m begging you to come over . . . and round them all up.’ Arpaio labeled the letter as ‘intelligence,’ forwarded it to his Deputy Chief of Enforcement Operations and told the Deputy Chief to ‘[h]ave someone handle this.’” (p.19)

• “Arpaio maintains an ‘immigration file,’ in which he keeps letters that advocate blatant bias against Latinos.” (p.19)

• “MCSO personnel responsible for prisoners held in MCSO jails routinely direct racial slurs toward Latino prisoners, including calling Latino prisoners ‘paisas,’ ‘wetbacks,’ ‘Mexican bitches,’ ‘fucking Mexicans,’ and ‘stupid Mexicans.’” (p.19)

• “MCSO’s Chief of Enforcement acknowledged that the majority of undocumented persons in Maricopa County are Latino and described undocumented persons as ‘the lowest element in our society.’” (p.20)

Continue reading »]]>

While eyes remain fixed on the Alabama legislature’s effort to revise their immigration enforcement law, HB 56, the U.S. Department of Justice informed state officials in a letter last week that the state’s immigration law has resulted in significantly higher absence rates among Latino students. According to the letter, more than 13 percent of Latino schoolchildren in Alabama withdrew from classes between the start of the school year and February 2012. While the Department’s investigation is still ongoing, the letter said Alabama could lose federal funding and face additional litigation if it fails to revoke a provision of HB 56 that requires administrators to determine the immigration status of newly enrolling students.

The release of the letter, which was sent by DOJ’s Civil Rights Division to the State Superintendent of Education, represents the latest exchange in an ongoing dispute over the impact of HB 56 on public education. The Civil Rights Division investigates any possible discrimination against children in public schools based on race, sex, religion, color and national origin. After HB 56 was enacted, the DOJ asked the Superintendent to provide data on school enrollment and absenteeism to determine if children were being negatively impacted by the law. While the Alabama’s Attorney General initially questioned the DOJ’s authority to request such data, the state eventually conceded.

According to the letter, the state’s own data, in addition to interviews with educators in the state, led the DOJ to some concerning conclusions on the state of public education in Alabama. Thomas Perez, the head of the Department’s Civil Rights Division, writes:

“With respect to withdrawals, the data show that compared with prior school years, the rates of total withdrawals of Hispanic children substantially increased. The data reflect that between the start of the school year and February 2012, 13.4 percent of Alabama’s Hispanic schoolchildren withdrew from school.”

Although the education provision of HB 56, Section 28, was enjoined by the courts soon after it went into effect, the DOJ letter said that it continued to have a chilling effect on the Hispanic community in Alabama. Interviews with state educators reveal that children suffered heightened anxiety and fear as a result of the law. Some students even reported being required to attend assemblies based on their actual or perceived national origin or immigration status.

Meanwhile, in the Alabama statehouse this week, a protracted battle is raging over how to amend HB 56. While pro-immigrant groups believe a total repeal of Section 28 is the only way to address the DOJ’s concerns, lighter tweaks are being suggested. One proposal replaces mandatory checks of incoming students’ immigration status with a requirement that the Alabama Department of Education compile an annual report of the fiscal impacts of educating children of unauthorized immigrants.

Yet, how the state would determine the impact without asking students about their immigration status, or that of their parents, remains unclear. Indeed, it’s hard to imagine how the state could assess immigration status of kids and parents without both violating law and creating a chilling affect that drives children and parents away from school.

If Alabama leaves Section 28 as is, the provision would remain enjoined pending a final decision from the federal appeals court in Atlanta, which has said it will not issue a decision until after the Supreme Court renders its ruling in Arizona v. United States, the case testing the legality of SB 1070.

The landmark Supreme Court decision in Plyler v. Doe guarantees all children in the United States have access to public education regardless of their immigration status. Given the evidence outlined in the DOJ letter, it appears Alabama has already crossed the legal line. While the future of Section 28 remains unclear, what is evident today is that the state of Alabama will remain liable for potential violations of civil rights law.

Photo by Zurijeta.

Continue reading »]]>

A local election in Travis County, Texas, is bringing to light important questions surrounding the controversial Secure Communities program. As recently reported by the Texas Tribune, Democratic primary challenger John Sisson has criticized incumbent Sheriff Greg Hamilton for honoring federal immigration “detainers”—the lynchpin of Secure Communities—because of their harm to immigrant communities. While Hamilton has said he is bound by federal law, contrary policies in jurisdictions around the country show the sheriff is either misinformed or confused.

Immigration detainers are official requests from Immigration and Customs Enforcement (ICE) asking law enforcement agencies to detain immigrants for 48 business hours after they would otherwise be released so that ICE can take custody. As we have previously explained, detainers are requests, not commands, meaning that local law enforcement agencies do not have to honor them. Yet by Sheriff Hamilton’s own admission, he honors every detainer he receives. “At the Travis County jail,” he said, “we follow the law, and the law says that when an ICE detainer is put on, the law enforcement agency shall maintain that individual for 48 hours.”

In truth, federal law does not require law enforcement agencies to hold individuals for 48 hours; instead, it requires them to release the subject of a detainer if ICE fails to assume custody within 48 hours. In fact, numerous jurisdictions around the country—including San Francisco, Cook County, Ill., and the state of Connecticut—have announced policies in the past year prescribing conditions that must be met for detainers to be honored (such as being convicted of a serious or violent crime).

ICE itself is partially to blame for Sheriff Hamilton’s confusion. Agency spokespersons frequently say they expect local law enforcement agencies to honor detainers but fail to mention that they are under no legal obligation to do so. In addition, ICE issued a new detainer form (Form I-247) last year clarifying that detainers expire after 48 hours, but suggesting that law enforcement agencies were required to honor them in the first place.

Aside from problems with detainers, there is larger cause to be concerned about Secure Communities, or “S-Comm.”  Although the program was intended to target serious criminals, it has resulted in the deportation of many immigrants with minor or no criminal record.  Nationwide, 26% of those deported through the program in FY 2011 had no criminal convictions.  In Travis County, more than 60% of the 2,269 immigrants deported between June 2009 and September 2011 were “Level 3” (the lowest priority level) offenders or had only immigration violations.  By contrast, less than 40% had Level 1 or Level 2 criminal convictions. These figures are consistent with trends documented in a report released in 2010 finding that in 2008, nearly 60 percent of detainers in Travis County were placed on those charged with misdemeanors—up from 38 percent in 2007 and 34 percent in 2006.

The number of deportations from Travis County also exceeded that of nearby Bexar County, which includes San Antonio and has a larger overall population.  The numbers have raised concerns that local law enforcement officers are arresting suspected immigrants on minor charges specifically to determine through Secure Communities whether they are in the country illegally.  For this very reason, opponents of the program have argued that the program creates obstacles to community policing and can lead to racial/ethnic profiling and pretextual arrests.

Sisson and Sheriff Hamilton will face off in the Democratic primary on May 29. In an interesting twist, the winner will face former Sheriff Raymond Frank, a Republican, who has stated he would not honor immigration detainers because they separate families.

Continue reading »]]>

It is difficult to quantify the electoral power of immigrant voters. However, new data from DHS’ Office of Immigration Statistics provides us with one way to gauge the electoral potential of the immigrant population. The numbers tell us how many Legal Permanent Residents (LPRs) arrived in each county of the United States since 1985. Using this data, it is possible to compare the number of post-1985 LPRs in each county against the margin of victory in the 2008 McCain-Obama contest. This helps to pinpoint where immigrants could be a potent electoral force if they naturalized and voted en masse.

Of the 3,114 counties in the U.S., excluding Alaska (which does not report election data by county), the number of post-1985 LPRs exceeds the McCain-Obama margin of victory in 189, or about 6 percent of all counties. In these counties, if the entire LPR population were naturalized and registered to vote, their numbers would have been large enough to change the result of the election one way or the other.

The counties where LPRs are potentially a swing vote are found in both Democratic and Republican territory. Of these counties, 79 were won by McCain and 110 by Obama in 2008. These counties are located in all major regions of the U.S., but with notable concentrations (see map):

• A near contiguous band of counties running from north central California through the Rio Grande Valley in Texas and up to Houston.
• A group of counties scattered across Illinois, Wisconsin, and Iowa (many of these counties have few immigrants, but had close margins of victory).
• 12 of 67 Florida counties.
• 16 counties in metro New York City.

While legal immigrants are largely a nascent political force (many still need to naturalize and then register to vote), these numbers show that their potential impact reaches across the country. We are only dealing here with counties in which the potential votes of LPRs exceed the McCain-Obama margin of victory. But remember that immigrant voters are key even in places where they are merely a large portion, if not necessarily all of, the swing vote. Based on these numbers, both political parties would do well to see immigrants as key to their election strategies.

Photo by Columbia City Blog.

* Thanks to work by Manuel Pastor and the Center for the Study of Immigrant Integration, these numbers have been further refined to include adults only.

Continue reading »]]> Of the many problems with our immigration system, one of the least known—but most frustrating—is that when the government deports immigrants whose appeals are still pending, it offers little to no help returning to the United States if they ultimately prevail in court. Immigrant advocates were thus perplexed when the Justice Department filed a Supreme Court brief in 2008 claiming to have a “policy” of helping such immigrants return to the country. Now, more than three years after the brief was filed, the current administration has conceded that no such policy existed at the time—and immigrant advocates have asked the Court to modify a portion of its ruling that relied on the government’s misstatement.

The case in question involved a Cameroonian immigrant named Jean Marc Nken, who entered the country on a visa, applied for asylum, and sought a green card based upon his marriage to a U.S. citizen. The Board of Immigration Appeals denied his requests, prompting Nken to seek review from a federal appeals court. After the appeals court also denied Nken’s motions, the Supreme Court agreed to take up the case—not to consider his request for legal status, but what standard should be used to determine whether courts can “stay,” or temporarily prevent, the removal of immigrants with pending appeals.

In its 2008 brief, the Justice Department told the Court that even if Nken ultimately prevailed in removal proceedings, the federal government had a “policy” of helping immigrants return to the United States who had already been deported. Although the Court ultimately rejected the government’s broader argument, its final opinion cited the policy as a factor courts could consider going forward in determining whether to stay the deportation of immigrants with pending appeals. The opinion also triggered a separate lawsuit by immigrants’ rights groups who knew from experience that noncitizens who won their appeals often faced great difficulty returning to the United States.

Soon after the Supreme Court issued its decision, the groups filed a request under the Freedom of Information Act (FOIA) seeking records about the purported policy from numerous government agencies, including the Office of the Solicitor General, which represents the government before the Supreme Court. The government resisted complying with the request for years, but in February, a federal judge ordered them to disclose relevant records—including emails between top department lawyers.

Following the release of the records, as well as a written inquiry from Sen. Patrick Leahy, the Solicitor General’s office submitted a letter to the Supreme Court acknowledging that the “policy” in question did not exist at the time the government filed its brief. The letter said the Court need not amend its opinion, however, because the Department of Homeland Security recently issued a formal policy outlining the circumstances in which the government would facilitate the return of deported immigrants who prevail in court.

Last Friday, a host of immigrants’ rights groups that participated in the original case submitted their own letter, asking the Justices to delete the part of the opinion that relied on the government’s brief. The letter noted that the new policy was deficient in many respects, that lower courts had relied on the Supreme Court’s opinion in permitting the deportation of immigrants with pending appeals, and that more could continue to do so unless the ruling was officially amended. (Disclosure: the American Immigration Lawyers Association, one of the groups on whose behalf the letter was submitted, provides direct and in-kind donations to the American Immigration Council.)

No time frame exists for the Court to consider the issue, although it could come up for discussion at the Justices’ internal conference on Thursday. While the Solicitor General’s office may not have deliberately misled the Court while it filed its brief in 2008, the Justices should heed the suggestion of immigrants’ rights groups and amend its opinion based on the new information that has now come to light.

Photo by Antony McAulay.

Continue reading »]]>

Though it has yet to be introduced in Congress, Senator Marco Rubio’s alternative to the DREAM Act received an appraisal from the Washington Post this week, which noted that it represents an effort to shake the hard-line anti-immigrant sentiment voiced by many leading conservative politicians. The editorial also noted, however, that the outlines of his proposal promote what’s tantamount to “permanent second-class status.”

Rubio has attempted to sidestep the controversial issue of legalization—a key component of the DREAM Act—by arguing that Congress can give undocumented youth “nonimmigrant” legal status and then let them find their own path to citizenship. Rubio states:

All this does is award a nonimmigrant visa to these kids who find themselves in this very difficult circumstance. At some point in the future, they would have no more or no less rights than anybody else in the world. They wouldn’t be getting any preferential treatment.

The trouble is, fending for yourself on the road to citizenship is difficult, if not impossible these days.

While we can’t precisely critique a bill that does not yet exist, the buzz words Rubio uses—including “nonimmigrant,” “being treated like everyone else,” and “no special treatment”—reflect a shallow understanding of our current immigration system.

To understand how these terms play out in real life, it’s important to understand a few things about our immigration laws. As we have noted many times in the past, there is no actual “line” that eager young people can simply join to become lawful permanent residents (which is the necessary precursor to becoming citizens).  Instead, without the protections and careful drafting that have gone into the DREAM Act, immigrant youth may find themselves in a dead-end status that ultimately limits their rights and opportunities.

Also, the term “nonimmigrant” refers to foreign nationals who will presumably return to their home country rather than settle in the United States when their visa expires.  While some visas allow nonimmigrants to live and work here for extended periods, the nonimmigrant scheme assumes that you aren’t planning on making the United States your home. Historically, nonimmigrant visas were never intended to give individuals life-long status in the United States.

From this perspective, DREAMers are the opposite of “nonimmigrants.”  For many, the United States is the only country they know. They don’t have another home to return to, and they hope to become citizens of the country they’ve lived in for most of their lives.  Thus, from the start, Senator Rubio’s proposal undermines the unique characteristics of DREAMers and ignores the whole reason the DREAM Act has become necessary—a generation of children are growing into young adults in this country with no mechanism for remaining permanently and fully participating in the country they love.

Moreover, treating DREAMers “like everyone else” would dump them into an immigration system that already has trouble keeping up with demand.  Because most lawful permanent resident visas, or “green cards” as they are commonly known, are tied to a family or employment relationship, DREAMers will have to find a way to qualify for the small number of available slots.  For example, only 140,000 employment visas are available annually, and it is the employer, not the employee, who decides whether to sponsor an employee for a green card. On the family side, there are no caps for marriage to a United States citizen of the opposite sex. But while some DREAMers would have the option of marrying an American, it seems unlikely that Congress would want to sanction marriage as the only guaranteed way for DREAMers to become citizens.

Furthermore, even if a DREAMer qualifies for a green card, those who entered the country unlawfully could face numerous barriers to becoming permanent residents. For example, under existing law, they would have to leave the country to obtain a permanent visa—and if they were unlawfully present for more than six months after their eighteenth birthday, they would face a three- to ten-year bar on returning.  This has been a nightmare for many families, and without the DREAM Act, immigrant youth will have to struggle through waivers, hardship claims, and extra costs associated with fixing these problems, and even then, with no guarantee of permanent status.

There are countless other problems that follow from a system that sidesteps permanent legal status. Questions about expiration of the visa, renewals, costs, work authorization, age limits, age at the time of entry—all the details that make crafting a program that meets the specific needs of a unique group—are not part of the public discussion of Rubio’s bill. These details matter a great deal when determining whether legislation is workable, can attract sponsors and votes, and has any chance of passing. By minimizing the unique issues of DREAMers and proposing to treat them like everybody else, Senator Rubio’s proposal diminishes the likelihood that it will be effective.

It’s understandable that some DREAM Act supporters are willing to look beyond these problems because Senator Rubio is holding out the promise of legal status and putting a lot of effort in discussing it publicly. Being free from the threat of deportation is no small victory, but the trade-offs must be carefully weighed.  If Rubio’s legislative solution triumphs, Congress would institutionalize a kind of legal limbo and second-class citizenship which is not in the best interests of our country.

It’s encouraging that Senator Rubio has taken on this issue, and we hope that it will bring more voices to the table. At the same time, any proposal that rests on the premise that all is right with the current immigration process is being built on very shaky ground.

Photo by j valas