The Unrealized Dream

The Development, Relief, and Education for Alien Minors (DREAM) Act was first introduced in Congress in 2001. Unfortunately, it was shelved along with many other legislative proposals by the terrorist events of September 11; Congress and President George W. Bush needed to focus on national security concerns, including the creation of the Department of Homeland Security and the Patriot Act. Since then, the Dream Act has been the subject of legislation in several sessions of Congress , but never enacted.

The Dream Act, of bi-partisan interest, focuses on students who were brought to the U.S. as children, some as infants, by parents who entered the U.S. without inspection or remained unlawfully after their period of lawful admission expired. These children have grown up in the U.S. and know no other country. Often they do not speak or write in their native language, because although their parents speak to them in their native tongue, these young adults answer in English. Culturally, they are more American than British, Italian, French, Indian, Chinese or Mexican. Yes, there is an infinite number of nationalities to whom the Dream Act would apply. It is not solely a Mexican or Latino issue. I remember well when the Immigration Reform and Control Act (IRCA, aka amnesty) was enacted in 1986, I had clients from every continent and a variety of countries.

The children, now young adults ("Dreamers"), encounter two obstacles to continuing their post-secondary education. First, under the Higher Education Act (HEA) of 1965, as amended, they are ineligible for federal financial aid. Such aid or scholarships are to be awarded "...without regard to age, sex, marital status, race, creed, color, religion, national origin, or disability."

The language does not include residence or immigration status as a prohibition. Second, Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) provides that anyone with unauthorized presence in the U.S. may not receive any post-secondary educational benefit, unless the same benefit is accorded to out of state U.S. nationals or citizens. This language has been used to disqualify Dreamers from in-state tuition.

California evaded the above prohibitions by qualifying the Dreamers not based on residency, but on other criteria: (1) 3 years of high school attendance in the state, (2) graduating with a high school diploma or its equivalency, and (3) filing an affidavit that application has been made for legal status or will be filed in the future. While such eligibility is not conditioned on California "residency" per se, from a practical point of view it would be difficult to satisfy these requirements without having lived in California. The question then is: Do these requirements violate Section 505 by discriminating against U.S. citizen students from other states?

Both Democrats and Republicans complain that these would-be post secondary students do not belong here and should go back to their countries, returning only in legal status. This solution ignores humanitarian and legal issues. It is a Draconian view that does not consider the hardship, extreme in many cases, because under current law, Dreamers simply do not qualify for any type of visa that would allow them to return. Even if they did qualify for a visa, they would be inadmissible for 10 years because they have likely been here in unlawful status for over one year. See, Section 212(a)(9) of the INA.

A perspective that critics of the DREAM Act ignore is that these Dreamers, as children, most likely had no idea that they were violating any law when they were brought to the U.S. by their parents. In similar vain, section 212(a)(9) forgives minors under the ages of 18 the 10 year inadmissibility bar of unlawful status. The DREAM act would extend the forgiveness of unlawful status to those who arrived in the U.S. under age 16 and remained until 35 at the time of enactment. After this, the DREAM Act would impose many eligibility requirements including (1) absence of criminal record, (2) completion of high school, (3) U.S. presence of at least 5 years, (4) and acceptance at a college or university. The first step of legal status is likely to be conditional residence of 6 years, followed by application for permanent status based on graduation from college or enlistment in military service, knowledge of English, U.S. history and government. The entire process could drag out for 10 years.

The battle of the Dreamers has been debated both in Congress and the public arena since 2001, in Republican and Democratic controlled legislatures. The most recent version was introduced and passed by the House of Representatives in December 2010 but never reached a vote in the Senate; both Houses were then controlled by the Democratic Party. In fact, the Democrats had control of Congress since January 3, 2007. President Obama is now promising to deliver the DREAM Act, just as during his 2008 campaign he promised to tackle immigration reform during his first year in office. It remains to be seen whether he will get another opportunity.