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The Golden Door

News and views on immigration law

Posts Tagged ‘DREAM Act’

Rumblings of immigration reform…

Friday, February 1st, 2013

I just read through the “Bipartisan Framework for Comprehensive Immigration Reform,” put together by a group of eight U.S. Senators, and the White House’s four-point platform on immigration reform, both statements which are (deliberately, no doubt) fairly similar in substance.

My first impression:

Good things:  both statements agree that (1) there should be a route for non-criminal unauthorized immigrants to obtain lawful status, including making amends for their unlawful actions such as paying back taxes and paying a fine; (2) our immigration system should permit individuals who have received advanced educational degrees in the United States to stay here without first getting an employer to sponsor them, thus freeing them to start businesses rather than rely upon an employer-sponsor for their status; (3) children brought to the United States without knowingly violating our immigration laws – commonly referred to nowadays as DREAMers – will face a less onerous route to obtain their permanent resident status than their parents; and (4) immigrant agricultural workers who have been paid “subsistence wages” should be granted permanent resident status, as there simply are not enough American workers for these agricultural jobs, and granting these workers permanent resident status would make them less vulnerable to exploitation by employers.

There seems to be a recognition running through the Senators’ framework that unauthorized immigrant workers are easily exploited by unscrupulous employers and thus granting these workers lawful status will, among other things, help build up stronger labor protections for workers in general.  (Of course, that brings us to a separate debate on business competitiveness when industries have to compete with overseas workers with weaker labor protection movements.)

Bad things:  The Senators’ framework makes permanent resident status for unauthorized immigrants contingent on “securing our borders and combating visa overstays.”  This statement raises the question of when will our borders be considered secure “enough”?  Another point made in the Senators’ statement restricts this class of “lawful probationary immigrants” from accessing federal public benefits, which means that while this class of immigrants would be required to pay taxes and thus fund these benefit programs they will not be able to access them when in critical need of social services.  This will create a new class of persons, with less rights than citizens or legal permanent residents.  Sounds complicated, and ripe for adverse unintended consequences.

Some of the points stated in these platforms sound great on paper but the real question is how they will be executed, such as:  Prohibit racial profiling; create an effective entry-exit tracking system so that we will know when someone who entered on a valid visa fails to depart on schedule; and provide “businesses with the ability to hire lower-skilled workers in a timely manner.”  I would love to see the “timely” part of that statement turn into reality.  Will timely mean a month?  Six months?  A year?  Two years?

The issue that faces one of the biggest implementation hurdles is creating an effective employment verification system.  As an immigration lawyer, it is difficult for me to sometimes identify the immigration status of the person in my office who has brought me all their immigration documents, and sometimes immigration officers themselves have a hard time, even with government databases at their fingertips.  The E-Verify system currently in place to verify employment authorization does not stop incorrect verifications through identity theft.  The Senators’ platform calls for an identity-theft-proof system.  A tall order.

Overall, a good start to the debate over what should be changed in our immigration system.  We’ll see where it goes from here.

Deferred Action for Childhood Arrivals – a mixed blessing

Tuesday, September 4th, 2012

On June 15, 2012, the United States Department of Homeland Security announced the introduction of a program known as Deferred Action for Childhood Arrivals.  The new program has been both hailed as a positive step for undocumented immigrant youth, reviled as a run-around Congress by the Obama administration, and received by immigration lawyers as a mixed blessing.  The program, known as “DACA,” which started accepting applications as of August 15, 2012, would grant two years’ of work authorization and a contingent promise not to attempt to deport during that period those undocumented immigrants who, on June 15, 2012, came here before age 16, are not yet 31 years old, are attending or have completed high school or served in the U.S. armed forces, and have a clean criminal history or one that is fairly minor in character.  I won’t get into the nuances of the criminal provisions here, which could be a whole other posting.

DACA is not a statute enacted by Congress and signed into law by the President.  It is not a regulation promulgated by an administrative agency after a period of public comment.  It is a policy put into effect by the executive branch acting through its authority to choose how to implement statutes and regulations.  An administrative agency has some scope of discretion in how it enforces the statutes and regulations that govern its mission, and under the Obama administration the Department of Homeland Security has interpreted its enforcement priorities to mean that it will direct its finite resources towards violent and repeat criminals and serious immigration violators first, and put those whose only sin is having come to the United States as children – often without any choice in the matter, who have lived good lives since then and become valued members of their communities – last.

Although there appears to be some confusion about what DACA is, let’s not mislead anyone:  DACA does not provide a path to lawful permanent resident status or U.S. citizenship.  It does not even provide legal immigration status.  What it provides, and the only thing it provides, is work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation.  As I stated to Michael Matza, a reporter at the Philadelphia Inquirer, on this very issue, you get employment authorization, which is very valuable, but the downside is that you raise your hand and say, ‘Here I am,’ and give your information to the government.  Before, you were under the radar.

Another consideration is how state and local governments will respond to DACA.  Some state government officials, such as in in Arizona and Texas, have already vowed to close off state-level benefits such as driver’s licenses to DACA beneficiaries, in protest of a perceived Obama administration run-around Congress’ refusal to pass the DREAM Act.  (The DREAM Act is proposed legislation that would provide a path to lawful permanent resident status to undocumented, educated immigrant youth with clean criminal records.  If you want to read more about it, here is a good place to start:  American Immigration Council.)

To even get approved for DACA, applicants must face certain thorny issues of proving eligibility.  For undocumented immigrants who have been living quietly away from the attention of governmental authorities, and who have been leery about providing any perceived authority figure with identification information, proving that they resided or went to school in the United States at a certain time and age can be difficult.  And, of course, there will be those who do not meet the timing requirements but who will try to falsely prove that they do anyway.

The benefits, work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation, while of real value to those who have lived here most of their lives but cannot legally work in the United States, must be weighed against the potential cost of voluntarily identifying oneself to a government that may change its mind about DACA at any time.  If you read through the official statement about DACA on the USCIS website you will see this ominous sentence:  “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”

So, while DACA is a welcome addition to the immigration benefits available to those known as DREAM Activists, it is quite limited in scope and the pros and cons of filing an application need to carefully weighed before submitting the application.  Here at Tran Law Associates, we will counsel you on the benefits and costs of DACA before signing on to represent you.  Although the decision of whether to apply for DACA is, of course, your decision to make, it is our responsibility when you come to us for help to make sure that it is a fully informed decision.

Tam Tran: Eulogy for a DREAM Act activist

Wednesday, October 6th, 2010

If you keep up with immigration news, you’ve probably been hearing a lot about the DREAM Act, and the most recent — and unsuccesful — push to get it enacted.  DREAM stands for the “Development, Relief, and Education of Alien Minors.”  This post, however, is not about the DREAM Act itself, but about one young woman who would have been a direct beneficiary of the DREAM Act had it become law.

This may be old news to those who keep up with DREAM Act stories, but on May 15, 2010, two DREAM Act activists were killed in a car accident:  Tam Ngoc Tran, age 27, and her good friend, Cinthya Nathalie Felix Perez, age 26.  It is Tam Tran’s story, in particular, that spotlights the legal limbo that those who come to the United States as children and grow up calling the United States home can find themselves in, although luckily there are immigration lawyers available to assist in such cases before they come to such a tragic point.

I’ll call her Tam, as it feels strange to call someone else “Tran” when that’s my name too.

Tam’s parents, Tuan Ngoc Tran and Loc Thi Pham, escaped Vietnam only to become refugees in Germany after being picked up at sea by the German navy.  Tam and her brother were born in Germany, but because Germany does not grant birthright citizenship neither she nor her brother are German citizens.  When Tam was six, her family came to the United States to be near other relatives already living here.  Upon their arrival, her parents applied for asylum based upon their fear of being persecuted for their anti-Communist political views if they were to return to Vietnam.  Tam’s father had been forced to attend a “re-education” camp before he and Tam’s mother had fled Vietnam.  For those of you who don’t know what “re-education” means, let’s just say it’s not fun and games.

Tam’s parents were denied their asylum application, but eventually, after further lengthy proceedings, were granted withholding of deportation.  This meant they would not be sent back to Vietnam because they would probably be persecuted if returned there.   U.S. immigration authorities then tried to get the family to return to Germany, but Germany refused to issue them visas.  After all, they weren’t German citizens.  So the family was effectively in legal limbo:  they did not have permanent resident status, but they were definitely documented aliens — Immigration knew exactly who they were and where they lived, and issued them work authorization documents on a regular basis.

So Tam grew up in Garden Grove, California, graduated from Santiago High School, then UCLA with honors, and then went on to doctoral program at Brown University.  She was a filmmaker and an activist, testifying on May 18, 2007, before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, in support of the DREAM Act.

In what Immigration and Customs Enforcement (“ICE”) claims is a random coincidence, three days after Tam’s congressional testimony about her family’s plight, ICE agents staged a pre-dawn raid on her family home, arresting her parents and her brother for being “fugitives from justice.”  Tam wasn’t home at the time but if she had been she, too, would have been arrested.  As far as I can tell, ICE is still trying to deport the family back to Germany.  There is no hint of any criminal actions on the part of any family members.  ICE’s goal appears to merely be to clean house — that is, to deport any deportables and check them off their list.  An ICE spokesperson said that, before, Germany had refused to issue visas when the Trans themselves had made the request; this time, the U.S. government would be making the request, which would more likely result in approval.  A judicious use of immigration resources, indeed.

In researching Tam’s story, I came across a tribute to her on the OC Weekly, “A DREAM Act Undeterred.” Although I learned a lot about Tam and her hopes and dreams from this piece, there is one bit that I have to quibble with.  The article characterized her as undocumented.  She was not undocumented.  She just (just!) did not have permanent resident status.  The only thing that her parents might be guilty of in terms of violating U.S. immigration law was bringing their family to the United States on visitor visas in order to apply for political asylum.  Once here, though, her parents obeyed all the immigration laws and followed all the immigration procedures in their quest for asylum.  The end result was that they did not obtain permanent resident status, but neither were they actually ordered deported.  They remained in the United States on the U.S. government’s explicit permission.  Tam was not an “illegal alien.”  She was allowed to stay in the United States because there was no where that she could safely be sent back to.  But without permanent resident status many of the avenues of support, financial and otherwise, for bright young students and budding young professionals like herself were simply not available to her.

Not everyone who would qualify for relief under the DREAM Act is as sympathetic a figure as Tam.  But her story is an undeniable part of the DREAM Act conversation, and her death at a young age is a loss to America.  I never knew Tam, but I believe that she would have done great things in this country, whether or not she ever become a permanent resident or, eventually, the ultimate goal, a citizen.  I think America would have been proud to claim her as one of its own.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933