On Dec. 4, Federal Judge Nicholas Garaufis of the U.S. District Court in Brooklyn ordered President Trump to restore DACA to the full scope of its coverage when the program was created by President Barack Obama. This is great news for DACA recipients– for the time being.
In a recent article, I addressed how the Deferred Action for Childhood Arrivals (DACA) executive order has left recipients vulnerable to modification of their legal status as presidential administrations have changed.
While DACA may serve as a good starting point for helping Dreamers, there is more work to be done to provide them with legislative reform. The 2020 election will have an impact on the future for Dreamers. Various proposals have come before Congress in recent years, but what remains to be seen is whether or not government leaders will build off of these proposals to formulate a long-term solution for Dreamers.
Who are Dreamers, and what is DACA?
Dreamers get their name from the DREAM Act of 2001. This bill would have created a path to legal status for immigrants who were in the country without documents, but it did not pass. While DACA is separate from the DREAM Act, DACA recipients are still referred to as Dreamers.
DACA was implemented as an executive order in 2012 under the Obama administration. Since its implementation, more than 800,000 people have been granted DACA status. These Dreamers have succeeded in American K-12 schools and institutions of higher education, abided by American laws, and contributed to the nation.
DACA grants people who were brought to the country as children without legal documentation temporary lawful status upon meeting certain requirements. It provides these young people with protection from deportation and the ability to obtain work permits, driver’s licenses, and more affordable higher education.
DACA’s Limitations
Despite the benefits available to Dreamers under DACA, the executive order does not provide a path to legal permanent residence (LPR) or citizenship. It only allows recipients to continue to renew their temporary status every two years, which leaves them vulnerable through election cycles as their status is contested.
I spoke with Karla McKanders about DACA. McKanders is a professor of immigration and refugee law at Vanderbilt University. She also runs the immigration clinic at Vanderbilt University.
McKanders stated, “DACA is not a form of legislation. It’s prosecutorial discretion. The Department of Homeland Security decides which immigrants to prioritize for removal from the United States. With DACA, DHS indicated that it would not remove children who came to the United States with their parents.”
DACA is not a piece of legislation. It is an executive order that prevents Dreamers from being deported. Since it does not provide a path to citizenship for recipients, DACA provides no long-term relief.
McKanders spoke about the importance of distinguishing the roles of the three branches of government when it comes to immigration. She emphasized, “Congress enacts immigration laws; the executive branch enforces immigration laws.”
It is the role of Congress to create laws that impact immigration, and it is the role of the executive branch to enforce those laws. DACA is an order issued by the executive branch– it is not a measure that has been codified into law by Congress.
DACA is vulnerable to changes in the executive branch under new administrations. McKanders reiterated, “Congress delegates the enforcement of immigration law to the executive branch. Each executive branch says what its enforcement priorities will be.”
As presidents cycle through office, new administrations may make changes that impact the DACA executive order as they set their priorities regarding immigration.
The Obama administration, for example, promised to focus its enforcement priority on felons, not families. Executive action differs between presidential administrations based on their priorities, and it does not provide permanent change in the same way that legislation passed in Congress can.
Dreamers deserve a legislative solution
I spoke with the Honorable Alberto R. Gonzales, 80th Attorney General of the United States, to find out more about DACA. Hon. Gonzales worked as a lawyer in his private practice in Houston, Texas; he then worked as a justice on the Texas Supreme Court before moving on to work with President Bush in the White House. Currently, he serves as the Dean of Belmont University’s College of Law.
Hon. Gonzales reinforced that DACA is ineffective as an executive order. He emphasized, “DACA is not the responsibility of the president through executive orders: it’s [the responsibility of] Congress.”
Even if DACA protects Dreamers, that protection is temporary. Creating impactful change for Dreamers lies within the duties of the legislative branch. Congress, not the president, will have to act.
In 2017, President Trump announced that he was going to end DACA. Trump then tasked Congress with passing legislation that would protect Dreamers after he brought DACA to an end. This would have moved the question of DACA from the executive branch to the legislative branch. Despite numerous proposals, Congress was unsuccessful at passing such legislation, leaving Dreamers vulnerable.
But prior to the December 2020 court decision on DACA, the Supreme Court ruled in favor of DACA recipients in June 2020. This ruling declared that the Trump administration did not have the legal power to end the program as he had planned.
These court decisions protect Dreamers for the time being. Still, DACA may be susceptible to modifications by future presidential administrations. This could lead to deportation, loss of work permits, loss of driver’s licenses, and higher tuition rates for Dreamers. Congress should pass a bill to protect Dreamers, should DACA’s coverage change in the future.
The 2020 Election and the future of DACA
The fate of DACA remains in limbo with the transition from the Trump administration to the Biden administration. President-elect Joe Biden claimed in the third presidential debate that if elected, he would immediately create a path to citizenship for DACA recipients. (For more about Biden’s campaign promises regarding immigration, click here.) Time will reveal whether Biden will make good on his promises.
What also remains to be seen is whether newly-elected members of Congress will collaborate to offer more permanent solutions for Dreamers. Even though Biden has expressed his desire to help Dreamers, he may not be successful if Congress is divided. While Democrats kept control of the House of Representatives, run-off elections in Georgia will determine which party controls the Senate.
Regardless of which party wins the Senate, Congress will need to work together to create comprehensive immigration reform. Without a path to citizenship, Dreamers will remain vulnerable to changes in their status under future presidential administrations.
Challenges for immigrants
Rose Bagwire is an immigration specialist at the Nashville International Center for Empowerment (NICE), where she works to empower refugees and asylum-seekers. Although the individuals Bagwire works with at NICE already have documentation, she offered her perspective more broadly on immigration as a law student who immigrated from Rwanda, where she worked with the UN Human Rights Council.
Bagwire explained that she wishes more people understood that immigrants are individuals looking to better their lives. She believes they are hardworking, peaceful, and open. Bagwire highlighted, “All of us came here because we wanted something good. Where we are from, it was not easy for us, some of us cannot even go back.”
Dr. Robert F. Barsky of Vanderbilt University provided counsel on some of the inequalities immigrants face. Dr. Barsky explores the connections between law and literature. He is the author of several books on migration.
Dr. Barsky spoke about the inequality which immigrants face. He underscored, “You or I can be bored or curious or hungry for travel and we can get up and go to the airport and go, and somehow because people are being persecuted in their countries of origin, they have to justify every single thing that they do. They have to prove that they have the right to travel and prove that they are appropriately persecuted.”
Despite the fact that DACA recipients did not make the choice to be brought to the U.S. as children, they are unable to move as freely as children born in the U.S. because they are not citizens.
Are there solutions for Dreamers?
Bills to provide a path to citizenship for childhood arrivals have been pending in Congress since 2001.
A high volume of proposals to protect Dreamers have come before Congress since 2017. Some of these proposals include: the BRIDGE Act, the Recognizing America’s Children Act, the Dream Act of 2017, the American Hope Act, and the American Dream and Promise Act of 2019.
Keep reading to learn about the benefits, drawbacks, and requirements of each of these proposals.
Helpful abbreviations and acronyms to know:
DACA – Deferred Action for Childhood Arrivals
CPR – conditional permanent resident
LPR – lawful permanent resident
TPS – temporary protected status
USCIS – U.S. Citizenship and Immigration Services
From the NILC
The 2017 BRIDGE Act: Buying time with a temporary solution
On January 12, 2017, the BRIDGE Act (H.R. 496) was introduced in the House of Representatives by Rep. Mike Coffman (R-Colo) and in the Senate (S.128) by Sen. Lindsey Graham (R-SC). The BRIDGE Act stands for: “Bar Removal of Individuals who Dream and Grow our Economy.”
The act would allow people who are eligible for DACA or who already have DACA to gain work authorization and have provisional protected presence for three years. The BRIDGE Act would not include a path to citizenship. Essentially, it would codify DACA into law and extend it for three years; this would give Congress more time to come up with a long-term solution.
To be eligible for provisional protected presence under the BRIDGE Act, a person would have to:
- be at least 15 years old;
- have been born after June 15, 1981;
- have come to the U.S. before their sixteenth birthday;
- have lived continuously in the U.S. since June 15, 2007;
- be currently in school or in an educational program aimed at obtaining a high school diploma or passing a general education development (GED) exam or other state-authorized exam; or, at the time of applying, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and
- not have been convicted of a felony offense, a significant misdemeanor, or three or more misdemeanor offenses, or been deemed to pose a threat to national security or public safety.
People who already have DACA would automatically have provisional protected presence; after their DACA’s expiration date, they would apply for the BRIDGE Act.
The BRIDGE Act would restrict the sharing of information with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs Border Protection in order to protect DACA recipients and BRIDGE Act applicants.
The BRIDGE Act would just be a start on the path to immigration reform; essentially, it would buy time for Dreamers while Congress creates more comprehensive reform.
Recognizing America’s Children Act: A middle ground between parties
The Recognizing America’s Children Act (H.R. 1468), also known as the RAC Act, was introduced on March 9, 2017 by Rep. Carlos Curbelo (R-Fla). This Republican-led bill draws upon much of what was included in DACA and also provides a pathway toward legal status and citizenship. Over the next decade (starting in 2017), RAC-eligible individuals are projected to contribute $721 billion in GDP.
“These are young people that went to school with our own children; they are working in this country; they are contributing to this country; they speak English… we should afford them the opportunity to be fully recognized as Americans and to gain legal status in this country.”
–Rep. Mike Curbelo
Under this act, applicants would be vetted by the Department of Homeland Security (DHS). Then, they would have three potential pathways toward legal status: higher education, military service, or employment. This would give them a five-year conditional status that would protect them from deportation, allow them to work legally in the United States and permit them to travel outside the country. After five years of conditional status, they could apply for a five-year permanent status. Then, at the end of their permanent status period (after a total of 10 years), they could apply for citizenship.
To qualify for conditional permanent resident status (CPR), individuals would have to meet these requirements:
- Establish that they came to the U.S. before the age of 16 and have continuously lived in the U.S. since at least January 1, 2012;2
- Pass a government background check and demonstrate “good moral character” with no felony or multiple misdemeanor convictions; and
- Earn a high school diploma or an equivalent (if they are 18 years or older); or
- Meet one of the following requirements (if they are 18 years or older):
- Demonstrate an intent to join the U.S. military (military path);
- Be admitted to an institution of higher education (higher education path);
- Have a valid work authorization document (worker path).
Then, after five years of CPR status, individuals could apply for a five-year extension of CPR by meeting one of the following requirements:
- Have been enlisted in the military or an active-duty reserve component of the military for at least three years during the preceding five-year period (military path);
- Have graduated from an institution of higher education (higher education path); or
- Have been employed for a total period of at least 48 months during the preceding five-year period (worker path).
Once their CPR status was extended, recipients could apply to become green-card holders, or lawful permanent residents (LPRs), if they continued to meet the requirements. If the recipient failed to meet all of the requirements, their CPR status would be revoked.
One criticism of the RAC Act is that it does not provide enough flexibility in extending the CPR status. It does not allow for a combination of the three paths (i.e. a combination of military service, higher education and employment). This means that many individuals who are working hard but fail to stick to one path could lose their CPR status. For example, an individual who “works for two years and then enrolls in a community college for two years” would not meet the qualifications for an extension.
Republican supporters say their bill strikes a “middle ground” between overly-stringent immigration policies and policies that are too lenient. The RAC Act could be a good compromise between parties in Congress. It “prevents incentivizing people to come here illegally or overstay their visas with the promise that their children can get legal status after waiting.” A solution like this may be a bridge between parties in Congress.
DREAM Act of 2017: A continued fight for Dreamers
Senators Lindsey Graham (R-SC), Dick Durbin (D-Ill), Jeff Flake (R-AZ), and Chuck Schumer (D-NY) and Representatives Ileana Ros-Lehtinen (R-FL) and Lucille Roybal-Allard (D-CA) introduced the Dream Act of 2017 on July 20, 2017. The bipartisan DREAM Act of 2017 is an iteration of the original DREAM Act of 2001.
The DREAM Act of 2017 differs from DACA in that it provides a path to citizenship. To qualify, individuals would have to meet requirements based on education, military service, or employment. The bill would “Grant current DACA beneficiaries permanent resident status on a conditional basis, and allow TPS beneficiaries, people without lawful immigration status, and people with final orders of removal the opportunity to apply for this same immigration status.” In other words, this bill would include Dreamers, TPS holders, and other undocumented groups.
The road to citizenship would take approximately 13 years by way of the Dream Act of 2017. First, the candidate would have conditional permanent resident (CPR) status for eight years. Then, they would apply for lawful permanent residence (LPR) status and receive their green card. To qualify for LPR, they would need to be enrolled in an institution of higher education, work for a specified time, or serve in the U.S. military. They would also need to meet other requirements. After five years with LPR, they could apply for U.S. citizenship.
The bill also directed the Department of Homeland Security (DHS) to stay the removal proceedings of TPS holders, DACA recipients, and other undocumented groups who met the qualifications. This included young people enrolled in elementary or secondary school.
Finally, the Dream Act of 2017 would repeal section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which “currently discourages states from making undocumented students eligible for in-state tuition or providing them other higher education benefits.” This would make college more affordable for undocumented youth by changing the rules about their access to in-state tuition and student financial aid.
The DREAM Act of 2017 is different from previous versions of the DREAM Act because it features a path based on employment, and includes a “hardship exception” for people who cannot meet the education, military, or employment requirement. It also features a less stringent age requirement. Previous versions of the DREAM Act said that individuals had to have entered the U.S. before the age of 16 and had to be younger than 30 to qualify. The 2017 version was expanded to include people who entered the country before age 18, and had no upper age limit.
While Senator Durbin was critical of Trump’s decision to end DACA, Senator Graham agreed that it was the right thing to do because he believed that President Obama had “overstepped his legal authority” by issuing the executive order that created DACA. However, Senator Graham hoped that President Trump’s decision to end DACA would force Congress to act because it was “good for the country economically and otherwise to give these kids the certainty they need in their lives.” Despite bipartisan support, the bill did not pass through Congress.
To see a comparison chart of the features included in the Dream Act of 2017, DACA, and the previous version of the DREAM Act in 2010, click here.
American Hope Act of 2017: A streamlined path to citizenship
The American Hope Act of 2017 (H.R. 3591) was introduced by Rep. Luis Gutierrez (D-Ill) on July 28, 2017. Gutierrez was supported by the Congressional Hispanic Caucus and 112 Democrats that had already signed as cosponsors. The bill would help DACA recipients and other undocumented immigrants who were brought to the U.S. as children.
The American Hope Act of 2017 would repeal rules that limit access to in-state tuition for undocumented youth. It would also give these youth access to grants, work-study programs, and student loans. In addition, the act would allow undocumented immigrants to contribute to their communities by working legally and continuing to pay taxes without fear.
To be eligible for the American Hope Act of 2017, applicants would have to have entered the U.S. before age 18. While the bill would reject applicants who have been convicted of crimes, it does not include work, education or military requirements like other proposals.
The bill would provide a streamlined path to citizenship. Eligible candidates would qualify for conditional permanent residency, which would last for eight years. After three years of having conditional permanent residency, candidates could apply for lawful permanent residence status. Then, after five years of LPR, they could apply for U.S. citizenship.
The conditional permanent residence status would protect them from being deported and allow them to work and travel. What is unique to this bill is that individuals who already have DACA could count their time under DACA toward the three years they would need in conditional legal status to qualify for LPR.
First, to qualify for conditional permanent resident (CPR) status, individuals would have to:
- Establish that they came to the U.S. before the age of 18 and have continuously lived in the U.S. since December 31, 2016;
- Pass government background checks; and
- Demonstrate that they have not been convicted of certain criminal offenses.
Then, they could qualify for LPR status by:
- Maintaining conditional permanent resident status for at least three years;
- Demonstrating that they have not abandoned continuous residence in the U.S.;
- Passing government background checks; and
- Establishing that they have not been convicted of certain criminal offenses during the period they have held CPR.
The American Hope Act of 2017 would include provisions to assist Dreamers on their path to citizenship. The bill would allow the Department of Homeland Security (DHS) to start a grant program for non-profit organizations that assist candidates with their applications for conditional permanent residency. It would also establish a Presidential Award for Business Leadership in Promoting American Citizenship for companies that assist their employees with naturalization. Finally, the Secretary of Education would develop an electronic program to provide English-language instruction.
Despite the fact that both the American Hope Act and the DREAM Act of 2017 provide Dreamers with protection and the opportunity to obtain legal status, there are differences between the two bills. The American Hope Act would make Dreamers who were brought to the U.S. before December 31, 2016 eligible for legal status. Meanwhile, the DREAM Act of 2017 said that only Dreamers who entered the country at least four years before the enactment of the bill would qualify. (This would mean that they would have had to enter before 2013.)
The two bills also differ because the DREAM Act of 2017 required that Dreamers graduate from or complete two years of a higher education program, complete at least two years of military service, or be employed for at least three years to become lawful permanent residents. The American Hope Act does not have such a requirement. Finally, the American Hope Act of 2017 would provide support for Dreamers through grant programs and initiatives to learn about naturalization and the English-language, while the DREAM Act of 2017 would not.
American Dream and Promise Act of 2019: Passed through the House of Representatives
The American Dream and Promise Act of 2019 (H.R.6) (ADPA) was introduced on March 12, 2019, by Representatives Lucille Roybal-Allard (CA-40), Nydia Velázquez (NY-07), and Yvette Clarke (NY-09). The bill passed through the House of Representatives on June 4, 2019 by a vote of 237 to 187, but it has not passed through the Senate.
If passed, the bill (ADPA) would provide protection from deportation and a path to citizenship for Dreamers, TPS holders, and DED holders, as long as they meet the requirements. To see an explanation of the bill from the National Immigration law center, click here.
The protections awarded by APDA would give more than 3.6 million Dreamers, 800,000 DACA recipients, 300,000 TPS holders, and 3,600 individuals with DED the chance to remain in the country. This would benefit our communities, schools, and the economy. For a state-by-state look at the immigrants who are eligible for protection under the Dream and Promise Act of 2019 and how they impact our country, click here.
For Dreamers and DACA recipients, the ADPA would create a “conditional permanent resident status,” valid for 10 years, that would protect them from deportation, allow them to travel outside of the U.S., and allow them to work legally in the country. In order to qualify, they would have to:
- Prove that they came to the U.S. before the age of 18;
- “Demonstrate they have been admitted to an institution of higher education, earned a high school diploma or an equivalent in the U.S., or are currently in the process of earning a high school diploma or an equivalent;”
- Pass background and security checks and have no felony or multiple misdemeanor convictions; and,
- Pay an application fee.
If they fail to meet the requirements or commit a serious crime at any time, they would lose conditional permanent status.
The APDA would also allow TPS Holders and DED recipients to adjust to LPR (green-card holder) status as long as they meet the requirements:
- “Establish they have lived continuously in the U.S. for at least three years before the bill’s enactment;”
- “Demonstrate they were eligible for or had TPS on September 25, 2016, or had DED as of September 28, 2016;”
- “Apply within three years of the bill’s enactment and meet the admissibility requirements for LPRs;” and,
- Pay an application fee.
The bill came as a response to the Trump Administration’s decisions to end DACA and not to extend TPS and DED status for nationals of certain countries. It is unique in that it provides a solution that is free of further enforcement provisions that are harmful to these groups. Even though the American Dream and Promise Act of 2019 did not pass through the Senate, the bill is an up-to-date reminder of the need for relief for immigrant youth and adults classified as Dreamers, DACA recipients, TPS holders, and DED recipients.
To support the American Dream and Promise Act, you can follow this link to email your senators.
The search for a solution continues
At this time, none of the bills mentioned in this article have passed through Congress. Despite numerous proposals in the past two decades, Dreamers are still in need of legislative reform that includes a path to citizenship.
Congress members have been unsuccessful at collaborating on relief for Dreamers. This is a reflection of the need for immigration reform at large. McKanders commented, “Over the years, Congress has not passed proposed legislation to legalize the status of Dreamers. Their inaction is a symptom of the need for comprehensive immigration reform.”
It remains to be seen whether or not Congress will prioritize passing legislation for Dreamers, and whether or not Congress will be able to cross partisan lines to get the job done. But everyone I spoke with agreed on the need for supporting Dreamers.
Hon. Alberto R. Gonzales affirmed the beauty of including immigrants in U.S. society. But he explained his belief in the need for order, as well. He stated, “We are a nation of immigrants – that’s what makes our country so strong. Our diversity of thoughts, ideas, and cultures— that’s something we should celebrate. We are also a nation of laws.”
He believes that Dreamers belong in American society, but that their path to citizenship should be fair and in-line with the path that other immigrants follow.
Hon. Gonzales proposed that a path to citizenship should be available to Dreamers, but that it should come with specific requirements. He explained, “I think there ought to be a pathway to citizenship for DACA recipients. These children were brought here of no fault of their own, but they’re here. There needs to be some sort of penalty—it should take a longer amount of time or involve an additional charge. There are people who have waited patiently outside of our borders for citizenship.”
Creating a solution for Dreamers that both sides can agree on will involve compromise. Hon. Gonzales added that including a penalty, as he mentioned, may increase the likelihood of passing legislation for Dreamers in Congress. “This may make it easier to satisfy both the Right and the Left,” he said.
As a nation, our goal should be to reform the system so that it is easier for hardworking immigrants to enter the country. Rose Bagwire voiced that we should have “new regulations so that it’s easy for everybody [and] so that we don’t have to encourage illegal immigration.”
Dr. Robert Barsky believes that we must do more than support DACA or another legislative solution for Dreamers in order to truly make a difference.
Dr. Barsky sees that there is a larger battle to fight. He declared, “We’ve got to shift the rhetoric. If accommodating DACA is just about accommodating DACA, it’s not enough.”
Dr. Barsky explained that if our efforts end with supporting the continuation of DACA for Dreamers, we have failed. He added, “We need to fight the deep-rooted inequality that is imposed through terms such as ‘foreign.’”
If we are to be allies to Dreamers, the scope of our mission needs to be broader. We need to continue to work for a society that is welcoming and supportive of immigrants.
So, just how do we do that?
On the one hand, we absolutely can and should push Congress to reform legislation regarding Dreamers and immigration as a whole. However, there are other ways we can make an impact as individuals.
McKanders explained that determining your entry point for helping to create solutions for Dreamers should depend on your interests. You can volunteer and get involved using the skills you possess at institutions that work to support Dreamers and immigrants. Having a multiplicity of voices within these institutions is extremely important.
Each of us can have impact within small organizations that are working for large-scale change. McKanders voiced, “The impact of grassroots organizations that are working on legislation cannot be understated.”
McKanders mentioned that choosing to become a lawyer is another avenue for supporting immigrants.
Bagwire suggested that someone who is interested in supporting immigrants should “help them to do things for themselves.” This could mean volunteering to teach English classes and advocating for them. The goal should be to create solutions that generate sustained success for immigrants.
Finally, Dr. Barsky indicated that working for a society that is more inclusive of immigrants can start with the way you treat people every single day. He advised, “Engage in it from the bottom all the way to the top— from the decent actions committed every day on the street, to being good at your work, to being responsible, to promoting kind relations amongst people.”
Creating a better world starts with each of us— our everyday actions matter. Barsky mentioned that supporting immigrants should center around empathy. We should recognize the innate worth in our fellow human.
While we wait for a long-term solution to pass in Congress, DACA remains in place for the time being. For current DACA recipients, information about how to renew DACA status can be found in United We Dream’s DACA renewal resources or the University of California at Berkeley’s DACA FAQ. Resources for allyship can be found at United We Dream.
*None of the legislation discussed in this article has passed through Congress. Do not seek or accept legal counsel from anyone regarding these proposals.
- Exploring legislative solutions: forging a path to citizenship for Dreamers - December 14, 2020
- Why Internally Displaced Persons Lack Protection - November 18, 2020
- DACA Leaves Recipients Vulnerable to Status Changes - November 8, 2020