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Anti-DREAM Act Rhetoric: Busting the Myths

The anti-immigrant rhetoric about the DREAM Act lately is disingenuous, to say the least, and completely false in other cases. Unlike experienced immigration lawyers, most legislators just don’t have the day-to-day experience of implementing or using the laws they create, so they may not fully appreciate the real impact the laws they enact have on real people, families, employers, and the community at large. I show below how some of the anti-DREAM Act arguments being made by certain legislators and their supporters just don’t stack up to the facts. As our colleagues at the Immigration Policy Center say, there’s an appalling lack of “truthiness” by some legislators, to use a term coined by Stephen Colbert of Comedy Central.

1. Myth: The DREAM Act is Amnesty.
Amnesty is forgiveness for a wrong or past offense. DREAM Act is a process for legalizing the status of young people who were brought here at a young age through no fault of their own. We do not normally hold children accountable for the acts of their parents. DREAM Act has many steps and requirements for applicants to follow that will take years to obtain in order to earn legal status. Dreamers must meet certain age and application requirements, complete high school or a GED, attend higher education or serve in the military, pay of exorbitant filing fees, prove all taxes were paid, and pass English, government and civics exams. There is nothing forgiving about the process. Many people will be excluded because of the extreme requirements. Serious criminal histories will not be forgiven.

2. Myth: DREAM Act will open the floodgates to mass chain migration.
In my earlier post on Anchor Babies and the 14th Amendment, I gave specific examples of how long it takes for a U.S. citizen child to sponsor a parent or sibling from Mexico, where the quota or backlog is really long, and how long it takes to sponsor a parent or sibling from Canada, where the quota is the “shortest”. Now, add the DREAM Act to the mix, and it’s even longer for everyone. The DREAM Act, as passed by the House and to be voted on by the Senate, makes this program last for 13 years before a Dreamer becomes a U.S. citizen. Did you get that? 13 years! Applicants must spend 10 years in nonimmigrant temporary status, followed by three years of permanent green card status before becoming U.S. citizens. Only then can a U.S. citizen Dreamer sponsor a parent or sibling, and the Dreamer must be at least 21 years old.

Taking my examples from the earlier blog post, which used the State Department’s September 2010 Visa Bulletin (monthly report of the quota and visa availability worldwide), the results of this “massive chain migration” will be as follows:

a) U.S. citizen Dreamer sponsoring a parent from Mexico: The category is “Immediate relative” (not subject to any quota). It will take 13 years of DREAM nonimmigrant status plus another 10 years if the parent lived in the U.S. illegally for a year or more (whether the parent entered illegally or arrived with a visa and overstayed by a year or more). This is because of the bar to adjusting status in the U.S. if the parent entered illegally or had unauthorized stay. As a penalty, he or she must process the visa abroad. Leaving the U.S. triggers the 10-year bar to re-entry, meaning the parent must reside abroad for 10 years before coming back to the U.S. with a green card. (There are rare exceptions to the 10-year bar.)

b) U.S. citizen Dreamer sponsors a Mexican Sibling: This is the fourth preference category which is subject to the quota. It will take 13 years from DREAM eligibility to sponsor the sibling, followed by a 16-year quota delay, plus 10 years living abroad if subject to the 10-year bar. Neither the Mexican parent nor sibling is eligible for a waiver of the bar because the U.S. citizen Dreamer adult child or sibling is not a qualifying relative for the waiver.

c) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) parent: The parent is an immediate relative not subject to the quota. But, if the parent entered illegally, it will be 13 years to sponsor the parent and another 10 because of the bar to re-entry as described above.

d) U.S. citizen Dreamer sponsors a Canadian (or French or Brazilian) sibling. Again, fourth preference, 13 years for Dreamer to sponsor, followed by 9 years quota delay, followed by 10 years if subject to the 10-year bar.

If the immigrating parents or siblings live overseas and were never in the U.S. unlawfully for six months or more, they will not be coming to the U.S. for at least 13 years for the parents, and another 16 years if a Mexican sibling or another 9 years if a Canadian sibling. (All of the above assumes Congress has still not removed the bars, and has not changed the annual visa allocations by country so quotas remain similar to what they were back in September 2010.)

In sum, we’re looking at some middle aged to elderly Dreamers becoming sponsors of elderly parents and siblings, who by then will prefer to remain in their home countries. Or, they could die waiting.

3. Myth: DREAM Act encourages illegal immigration.
DREAM Act applies to people who are already in the U.S. for at least the last five years from date of enactment. If you are not here by now or come in the future illegally, the law does not benefit you. It applies to young people who came to the U.S. before age 16. If you come to the U.S. after age 16, DREAM does not apply to you either.

4. Myth: We must secure the borders first.
When the borders will be secure is a moving target and it changes periodically for political reasons. No one has ever defined when the border will be secure. The reality is that having secure borders is a significant, ongoing mission of the U.S. with no start or end date. It is also incredibly big business with billions of tax dollars being thrown at it. Many contractors reap the benefits of those tax dollars both for enforcement activities and gadgets that work and don’t work, and to support the growing private prison business. It is enforcement-only legislation that encourages illegal immigration if we don’t also fix the legal immigration system to make it more modern, streamlined and timely to fit with our economy, labor needs and vision of what kind of country we want to be. The lack of nonimmigrant visa and permanent visa categories and opportunities with sufficient numbers has resulted in unparalleled illegal immigration. DREAM Act is but one small step to rectify the mess that has been created by our failed legal immigration system.

In the 25+ years that I have practiced immigration law, we now spend more taxpayer dollars than ever on enforcement, yet we have the highest level of illegal immigration than ever before. This is because anti-immigrant supporters fail to grasp the connection between legal immigration, the economy, human dynamics, foreign relations, environmental calamity and enforcement. It is one ecosystem. It is one reason why the 1986 Immigration Reform and Control Act, which gave us a legalization program, and imposed new burdens on employers, failed to some degree. Congress did not simultaneously deal with the future of orderly legal immigration. There were no new visa categories created for people to come to the U.S. short term, to work in skilled or unskilled labor, or to fill shortage occupations. Instead, since 1986, every new piece of immigration legislation has been enforcement-focused. Examples include: a) creating annual caps on temporary visas and permanent visas, b) instituting the three and 10-year bars that keep people otherwise eligible to immigrate legally trapped in illegal status, and c) making minor crimes, some of which are not even crimes in criminal court, retroactive forever as a bar to immigration.

The December 7, 2010 Immigration and Customs Enforcement (ICE) Annual Total Removals report for FY 2010 indicates of the 10-12 million undocumented immigrants in the U.S., ICE removed 392,862 individuals with a budget of $5.2 billion. This does not include activities by Customs and Border Protection and its enforcement efforts at the border or within 100 miles of the border. The year-end figures show that it will take a minimum of $130 billion of taxpayer money and 20 years at a minimum to deport 10-12 million so as to make the border “secure”, when the public is more concerned about the economy and the deficit.

Finally, requiring this particular group of Dreamers to come forward and register themselves through the application process provides more security once we know who they are. On the other hand, keeping 10 million other people without status, without valid drivers licenses or state ID cards in most states, and without access to valid social security cards makes us less safe if we don’t know who the people are living among us.

5. Myth: The Dreamers “have made their first act on American soil a crime just by entering the country.”
First, not all undocumented people are here without status because they entered illegally. Many entered lawfully but either had technical violations of status (e.g., filed for an extension of stay or change of employer too late, worked on visas without authorization) overstayed their visas, or otherwise later became removable after lawful entry. (There are about 30 different grounds of removability).

Second, the act of entering the U.S. without inspection is a civil violation. Only an immigration judge working in a specially designated administrative civil court within the Executive Office of Immigration Review has authority to decide who can stay or leave the U.S. A removal proceeding is administrative and civil in nature without the protections afforded to those accused of crimes, such as jury trials and government appointed counsel at no expense. A person who has previously been removed and reenters illegally is subject to criminal prosecution as well as a civil removal hearing. Most Dreamers are not criminals.

Third, most DREAM Act young people came to the U.S. with their parents when they were not of an age to know a law was broken. Many did not even know they were undocumented until they went to sign up for drivers training, to apply for college or financial aid, or to apply for a social security number. Therefore, it is disingenuous to accuse DREAM Act kids of having personally broken the law when their parents took action (or, in some cases, failed to take action) on their behalf.