DREAM ACT
The DREAM (Development Relief and Education of Alien Minors) Act failed on
a procedural vote of 55-41 in the Senate on December 18, 2010. Sixty votes were
needed to move the bill forward towards final approval.
DREAM is an immigration reform proposal to allow undocumented young people
who have been raised and schooled in the U.S. to obtain permanent residency
and a path to citizenship. Perhaps the most eloquent example of the purpose
and need for the legislation was the 2005
underwater robotic championship won by a group undocumented Phoenix high
school students who competed against and defeated a prestigious MIT team in
a typically American tale of a spunky challenger who seizes an opportunity and
achieves a seemingly unobtainable goal.
The House on December 8, 2010 by a vote of 216 to 198 passed a version of the
law as an amendment to H.R. 5281. The provisions were set forth independently
as legislation in H.R.
6497. (It was also known as the Removal Clarification Act of 2010.) On the
night of December 16, Senate Majority Leader Reid filed cloture on H.R. 5281,
setting up a critical procedural vote in the Senate. The purpose of the vote
was to force the end of a filibuster in the Senate against DREAM. Three Republicans
crossed the aisle to join 50 Democrats and 2 Independents, but it was not enough.
5 Democrats actually voted against DREAM: Baucus (MT); Hagan (NC); Nelson (NE);
Pryor (AR); and Tester (MT). Newly elected Joe Manchin (WV) failed to appear
for the vote, which was equivalent to a "no" note. The five Democratic
votes were decisive in defeating DREAM.
Although DREAM was not adopted by Congress, the Obama Administration reaffirmed
a policy of prosecutorial discretion in July 2011. In two memos, Immigration
and Customs Enforcement (ICE) Director Morton announced a directive to refrain
from pursuing noncitizens with close family, educational, military, or other
ties in the U.S. and instead spend the agency’s limited resources on persons
who pose a serious threat to public safety or national security. Morton issued
a second memo that applied an exercise of discretion to cases involving victims,
witnesses to crimes, and plaintiffs in good faith civil rights lawsuits. The
memo instructs “[a]bsent special circumstances or aggravating factors,
it is against ICE policy to initiate removal proceedings against an individual
known to be the immediate victim or witness to a crime.”
It is uncertain how the new directives will be applied practically. Hopeful
statements that persons who had been in the US illegally for a long time but
had no criminal record would be allowed to remain and obtain employment authorization
have proven premature and it is uncertain what can be achieved pursuant to the
memos and announcements as they filter down through administrative channels.
This requires close scrutiny of an individual case by a competent attorney.
First, a determination should be made whether an undocumented person in the
country really did enter illegally (as believed) or was actually waved through
by mistake at a border checkpoint by an immigration inspector. If there is documentary
proof of a faulty inspection procedure, then the person may actually have a
valid claim to have entered the United States legally and be able to benefit
from other provisions of existing law to obtain permanent residency through
non-Dream adjustment of status
procedures.
Second, if a person was the beneficiary of a petition for adjustment
of status that was filed prior to April 30, 2001 and it was prima facie
approvable by the immigration authorities (even if it never was approved), then,
upon payment of a fine of one thousand dollars in addition processing fees,
the filing date of that earlier petition may be used for a new, independent
petition under section 245(i) of the INA, which may yield permanent residency
apart from the provisions of the Dream Act and notwithstanding an illegal entry
to the United States initially.
Third, if the person has been present for a long time and not run afoul of
the law, it may be possible to obtain a favorable exercise of prosecutorial
discretion.
If you have questions about having been waved through an inspection point
as a child upon entry to the United States, or amnesty under section 245(i),
or believe you may qualify for a favorable grant of prosecutorial discretion,
please contact Messing Law Offices.
For those who are interested in details of DREAM during the last stages of
consideration by Congress:
(On November 30, 2010, Senator Durbin had filed an alternative version of
the DREAM Act with the aim of attracting broader support in the Senate. Click
here to view
the November 30 version (S. 3992). But on December 9, 2010, the Senate withdrew
consideration of S.3992 by a 59-40 vote, in favor of considering the version
passed by the House.)
The bill as passed by the House would have provided for a new, conditional
non-immigrant status, among other conditions, for any person who
- had been in the U.S. for five years prior to the enactment of the new law;
- entered the country before age 16;
- was of good moral character;
- was a high school graduate, has a GED, or is admitted to an institution
of higher learning located in the U.S.;
- had not been convicted of a felony or three separate other offenses on separate
dates for which 90 days of imprisonment or more was imposed.
Under the House bill, an application for conditional non-immigrant status had
to be made within one year of obtaining the high school diploma or GED or the
adoption of regulations, whichever is later and an applicant had to register
for the Selective Service (draft), if subject to its provisions.
Conditional non-immigrant status will last for an initial five year period
with employment authorization and an ability to travel outside the country with
authorized return for periods up to 180 days provided the conditional non-immigrant
is not, during the five years, dishonorably discharged from the military, becomes
a recipient of public assistance, fails to maintain good moral character, or
is convicted of a disqualifying crime.
Conditional non-immigrant status would have been extended for another five
years if the person had served for at least two years in the military (without
a dishonorable discharge) or at least completed two years of study at an institution
of higher learning in the US, and remained of good moral character.
The conditional non-immigrant would have paid a surcharge of two thousand dollars
for the extension, in addition to the processing fees.
In the last year of conditional non-immigrant status, the person could have
applied for adjustment of status.
At Messing Law Offices, we provide high quality legal services and expertise
to families, working men and women, and businesses. If you have a concern in
the areas of family based immigration,
business based immigration, employment based immigration,
or naturalization and you are seeking the help
of an experienced immigration lawyer, call Messing Law
Offices for professional Arizona immigration attorney assistance.
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