This essay provides an overview of the conditions undocumented immigrants to the United States face today. It begins with an overview of immigration and then presents the struggles and challenges that immigrants face, such as abuse and profiling by Immigration and Customs Enforcement (ICE) agents and Border Patrol officers. Undocumented status makes many immigrants vulnerable to abuse and profiling due to the lack of information necessary for them to stand up for their limited rights. Other struggles that undocumented immigrants face arise in the area of detention and deportation. Again, immigrants face abuse and many of their basic human rights are often violated. Finally, this paper discusses Deferred Action for Childhood Arrivals (DACA), a pathway since 2012 that allowed undocumented immigrants to get one step closer to becoming documented but was rescinded by President Donald Trump in 2017. On Tuesday, January 9, 2018, however, U.S. District Court judge William Alsup halted the rescission, thereby providing a window for undocumented immigrants meeting the criteria to apply for or renew their status under DACA. Still, there is continuing pressure from the administration to end DACA.
Pat Buchanan stated on MSNBC in 2009 that Mexico would be the greatest foreign policy crisis that America would face within the next 20 years, based on projections that there would be about 135 million Hispanics in the United States by the year 2050 (Chavez, 2008). Why is this considered a crisis? Leo R. Chavez (2008) argues that Robertson’s claim is representative of what he calls the Latino Threat Narrative. Proponents of this narrative put forward the argument that Latinos are not like other immigrant groups in the U.S. because other immigrant groups ultimately assimilate into the national culture, whereas Latinos do not (Chavez, 2008). Latinos are often seen as invaders from the south who want to reconquer land that was formerly theirs and destroy the American way of life (Chavez, 2008). However, this is nothing new since similar threat narratives were previously levied against immigrant groups such as Germans, Catholics, Chinese, and Japanese (Chavez, 2008).
The number of immigrants in the U.S. has been growing at a steady pace since 1960. In 2008 the estimated number of undocumented immigrants living in the U.S. was around 10 to 12 million, with most of the immigrants coming in from Mexico (57%) and an additional 23% coming from other Latin American countries (Chavez, 2008). This increase of undocumented immigrants led to public concern over immigration and legislative proposals to reform the immigration laws in the United States (Chavez, 2008). This appears to conform to the idea, known as the 10-year cycle, that concerns about immigration and proposals to reform immigration policies occur every 10 years (Chavez, 2008).
In the 1970s President Jimmy Carter considered the possibility of an amnesty for undocumented immigrants and imposing sanctions for employers who hired undocumented workers (Chavez, 2008). This possibility never occurred since immigration was not a prevalent issue at the time (Chavez, 2008). Ten years later, President Ronald Reagan signed the Immigration Reform and Control Act of 1986 (IRCA) (Chavez, 2008). The major provisions of IRCA gave sanctions for employers who hired undocumented immigrants and an amnesty program was put in place for over a million undocumented immigrants (Chavez, 2008). Following IRCA the number of unauthorized immigrants in the country rose from 5 million in 1986 to 11.1 million in 2013. High demand for immigrant labor in the United States and the negative effects of North American Free Trade Agreement which, launched in 1994, displaced millions of Mexicans from their farms. The Immigration Act of 1990 increased the number of legal immigrants allowed into the U.S. each year from 500,000 to 700,000 (Chavez, 2008). In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. This act created tougher requirements for undocumented immigrants to adjust their status to that of a legal immigrant and began turning deportation decisions over to immigration courts; this essentially reduced the level of judicial review open to immigrants (Chavez, 2008). This change also widened the range of “deportable offenses” (Chavez, 2008: 8). In 2006, the U.S. Senate passed its own version of immigration reform that included a guest worker program for immigrants and a legalization program (Chavez, 2008). This, however, did not result in a new law. In 2007, President Bush took up immigration as well, but it also did not result in the passage of any new laws (Chavez, 2008).
Ice and Border Patrol Abuse
U.S. Immigration and Customs Enforcement (ICE) is a government agency that enforces the laws governing border patrol, customs, trade and immigration to promote homeland security and public safety (Johnson et al., 2015). ICE has the duty to apprehend, detain, and remove noncitizens who have committed crimes within the U.S. (Johnson et al., 2015). ICE takes custody of noncitizens detained during and after removal proceedings and they also serve as one of the “largest jailors in the nation” (Johnson et al., 2015, pg. 229). ICE focuses on three operational directorates: The Homeland Security Investigations (HSI), the Enforcement and Removal Operations (ERO) and the Office of the Principle Legal Advisor (OLPA) (Johnson et al., 2015).
Customs and Border Protection (CPB) is one of the world’s largest law enforcement organizations. They are in charge of keeping terrorists out of the U.S. while facilitating international travel and trade (Johnson et al., 2015). In 2013, CPB officers processed more than 360 million travelers at U.S. air and seaports (Johnson et al., 2015). CPB also oversees the efforts to increase border security through enhanced technology and any construction that may be done at the Mexican border (Johnson et al., 2015).
CPB and ICE have often faced controversy over their removal tactics, as well as alleged harassment of undocumented immigrants. The ACLU argues that ICE’s removal tactics strip immigrants of the right to a fair hearing in court, “as the government rushes to judgment and tries to ram people through a rubber-stamp system that ignores individual circumstances” (“Ice and Border Patrol Abuses”). They further suggest that ICE’s enforcement programs pose multiple threats to the civil liberties of those with whom they come in contact, including the Fourth Amendment protection against unreasonable searches and seizures, the constitutional right to due process and the right to equal protection and freedom from discrimination (“Ice and Border Patrol Abuses”).
There are many reports that also show ICE agents harassing individuals who are leaving courthouses. There is often no reason for such questions or harassment. There has been an increase in this trend under the Trump administration all across the county. One such case occurred in El Paso, Texas in February 2017. Video evidence and reports show that federal immigration officers went to the El Paso County Courthouse and arrested an undocumented woman who had just been given a protective order that states that she was a victim of domestic violence. Agents had received a tip about the woman from her alleged abuser, who was already in the custody of immigration officers. Arrests that are being made in the courthouse are of great concern since it appears victims are punished for seeking out help from their abusers. They might fear that if they go to the courthouse they will be detained, deported or separated from their children. This is because the abuser has the power as they may give the victim’s name to ICE if the victim chooses to leave them. These are aggressive tactics that are being fought against by lawmakers and chief justices of California and Washington.
Similar issues arise with the U.S. Customs and Border Patrol (CBP), which has often been criticized for using both racial profiling and excessive force. CBP often uses checkpoints within 100 miles from the country’s external boundaries. One of the most recent controversies that involved the U.S. Customs and Border Protection occurred in August, 2017 when Hurricane Harvey hit Texas. During this time, people were trying to leave Texas in search of refuge from the hurricane. In order to leave, residents of the state would need to go through CBP checkpoints. The CBP refused to close these checkpoints and by doing so put many undocumented people at risk because of their fear of being deported. This brought forth the issue of whether these Border Patrol checkpoints should be open when a natural disaster occurs.
Border Patrol officers often abuse their power in other ways as well. In the case of United States v. Brignoni-Ponce, there were two border patrol officers who were observing traffic on the side of the Interstate Highway 5, north of San Diego, California (Johnson et al., 2015). In this case, the officers pursued the car of Brigoni-Ponce because the occupants of the car appeared to be of Mexican descent (Johnson et al., 2015). The officers stopped the vehicle, questioned the occupants, discovered they were all in the country illegally and arrested them (Johnson et al., 2015). Here, the occupants of the car argued that the police stop was illegal unless there was a reason to suspect that the occupants were undocumented (Johnson et al., 2015). The Border Patrol is not allowed to stop a vehicle that is near the Mexican border and question occupants unless there is a ground for suspicion; however, the courts in this case created an exception (Johnson et al., 2015). The exception is that a vehicle may be stopped by a patrolling officer when they are aware of specific facts that create a suspicion that the vehicle is occupied by undocumented immigrants (Johnson et al., 2015). Factors that may be considered in exceptions are the characteristics of the area, the proximity of the border, and any relevant information about a recent illegal crossing in the area (Johnson et al., 2015). The Courts often tailor their response to claims that “undocumented migration” is out of control. (Johnson et al., 2015). These kinds of stops as well as racial profiling stops are still occurring today.
There are many detention centers located throughout the United States. These detention centers are either privately owned, city owned, or owned by ICE. Although the figures tend to vary depending on the source, the estimated cost to keep a detained individual in a private immigration detention facility is $90.43 per day, higher than the average of $72.69 per day to keep an individual in municipal jail (CIVIC, 2015). The U.S. has the largest immigration detention infrastructure in the world and detains approximately 380,000 to 442,000 persons per year (CIVIC, 2015). Many detainees are asylum seekers, victims of human trafficking, or legal permanent residents. These detainees are held for months and sometimes years (CIVIC, 2015).
Immigration detention centers started to become more prevalent during the 1980s. Before then, there were only about 30 people in immigration detention each day (CIVIC, 2015). Then two private prison corporations, the GEO Group and Corrections Corporation of America wanted to expand detention facilities. As a result, these two private corporations lobbied for laws that achieved this goal and ultimately led to a new prison being built every 15 days throughout the 1990s (CIVIC, 2015). In 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (CIVIC, 2015). These two acts led the number of people in immigration detention centers to double from 8,500 each day in 1996 to 16,000 in 1998 (CIVIC, 2015). These laws also gave the U.S. Government the authority to deport lawful permanent residents who were convicted of certain crimes. Around 2015 there was an increase in immigration detention due to a “Lockup Quota” that was mandated by Congress. Due to this quota there are now about 34,000 people in immigration detention each day. Consequently, Congress has made large increases to the budget allocated for immigration detention (CIVIC, 2015). ICE estimates that it costs the government about $12,500 to deport each individual (CIVIC, 2015). However, after adding on the costs of apprehension, detention, legal processing, and transportation it is shown that the government spends more than $23,000 to deport each person. In 2015, it cost taxpayers about $2 billion dollars just to keep undocumented immigrants in detention, not including other costs. (CIVIC, 2015).
A concern regarding immigration detention is that there is not much oversight in these systems, making the detainees subject to abuse. According to a national investigation done at the end of 2013 by the Detention Watch Network, as many as 250 detention centers out of 257 could not guarantee detainees basic medical care needs (Detention Watch Network, 2013 ). Also, these 250 detention facilities could not guarantee adequate protection against physical and sexual abuse. Since there has been a growth in immigration detention, the issue of immigration detention conditions has become more apparent. Also, “since detention is contracted out and the system is decentralized, ICE is unable to ensure access to counsel and uniform fair treatment of detainees” (Johnson et al., 2015: 538). Although operating under the National Detention Standards system, detention centers are seldom subject to the consistent enforcement of the standards.
Violations of due process are also a concern in detention facilities because many of these facilities offer limited access to legal services and most detainees receive no legal representation. Many families are separated as a result of these detentions. Some of the detainees do not have a criminal background or charges but face deportation nonetheless. A 2009 internal ICE review found that only 11% of detainees had been convicted of violent crimes. In August 2017, President Trump stated at a campaign rally that his administration was going to start targeting immigrant “animals” who are involved in gang violence (Desgranges, 2017). However, in many cases, these so-called “animals” are children who have not been accused of any crime but have been falsely labeled as gang members (Desgranges, 2017). In many cases, children are labeled gang members because they wear clothing that may be associated with gangs, such as the apparel of certain sports teams, or because they may be playing soccer with another person who is a suspected gang member (Desgranges, 2017). This labeling allows ICE to pick up a child and place them in a detention facility (Desgranges, 2017).
Detentions of innocent children have led to court cases such as the 1997 Flores v. Reno case. The ruling in this case held that a detained child has a right to know why they are being placed in a detention facility and that they have the right to challenge the placement through legal representation (Desgranges, 2017). In 2008, Congress passed a law that immigrant children were not to be placed in highly restrictive detentions that had jail-like conditions unless the child posed a threat of danger to themselves or others, or if the child had committed a criminal offense (Desgranges, 2017).
Many detainees attempt to obtain legal help but are often given incorrect information or are refused help. Typically, immigrants held in detention facilities have a right to see an immigration judge for a hearing to see if they are eligible for relief to stay in the United States. However, when detainees ask ICE officials about a hearing, they are often told that they do not qualify for a bond or any other type of remedy (Gavett, 2011). This is usually not the correct advice because many of these immigrants are indeed eligible for relief. Many immigrants, if not all, who are detained are eligible for voluntary departure (Gavett, 2011).
Voluntary departure is not the same as a deportation order and does not carry the same penalties, such as a criminal charge for those who return to the United States (Gavett, 2011). For a voluntary departure, an immigrant may or may not receive a hearing before an immigration judge (Gavett, 2011). Immigrants also have the right to be represented by an attorney but at their own expense when they are being detained civilly and not on a criminal charge (Gavett, 2011). Immigrants who have been detained are also to be allowed a free telephone service in which they are allowed to call an immigration attorney, and the number to call should be posted in each detention facility (Gavett, 2011). However, there are many news reports and complaints that this is often not the case and detainees are prevented from using the phones (Gavett, 2011).
Many immigrants who have been detained also have the right to be released on bond or can request a bond hearing with the immigration court (Gavett, 2011). It is often discouraged to be released on bond since immigration court proceedings often move more quickly if the person is detained than if they are out on bond (Gavett, 2011). But, when a detainee decides to fight their case it may become an issue because their detention may last for several months longer as the process is underway (Gavett, 2011). Contact with family is also a problem. There are many systems in which a person can search for the location of an individual through the ICE locater website by first and last name (Gavett, 2011). However, locating a person is often difficult since names are often misspelled in the ICE system (Gavett, 2011).
Another issue that arises is the unlawful detention of immigrants beyond a period of 48 hours. Legally, ICE can only detain an undocumented immigrant for 48 hours without a warrant, but often fails to comply with the law. Many of the individuals who are detained for longer than 48 hours file Habeas Corpus petitions. Habeas Corpus petitions are used in order to call upon the state or the federal court to intervene when the government has unlawfully taken away an individual’s liberty. This relief can often lead to winning cases so it is always a good resource for detainees to know about. There are other remedies available for detained immigrants, but they are often unaware of their options or do not have access to legal representation. As a side note, longer detention periods affect U.S. citizens because more local tax dollars are spent on these detentions.
There is also the 90-day statutory removal period. Once a person receives a “Final Order of Removal, Deportation, or Exclusion” form, the Department of Homeland Security (DHS) has 90 days to remove them from the United States. When a person is detained for longer than 90 days they may be eligible for a custody review and often times for a parole or a supervised release from custody. If an individual is detained for longer than 90 days, then a deportation officer should review the case and may release the individual if they believe the individual is not a flight risk or a danger to the community. Some things that are considered when conducting a custody review are criminal history, the nature and seriousness of criminal convictions, sentences imposed and served, evidence of rehabilitation and prior immigration violations.
In some cases, the request may be denied if there are continued reasonable efforts for removal. However, the concept “reasonable efforts” is vague, which in turn leads to many issues regarding interpretation. There have been numerous instances in which it has been held that, because reasonable efforts were being made for removal, continued detention was allowed.
There are also plans for the expansion of detention facilities as more undocumented immigrants are being detained. Expansion of detention facilities can only lead to further problems with lack of oversight and abuse. According to a 2017 report by the National Immigration Justice Center, “[t]he Trump Administration…asked Congress to allocate $2.7 billion dollars to lock up a daily average of 51,379 immigrants in 2018” (p. 1). This raises concerns regarding safety and basic healthcare for detainees (National Immigrant Justice Center, 2017). As a general statistic, currently about 65% of immigrant detainees are held in private prisons and 25% are held in county jails that contract with DHS (National Immigrant Justice Center, 2017).
Deportations and Incarceration
Recent deportations have targeted those with criminal backgrounds. In 2015, a study by the American Immigration Council on the criminalization of immigrants in the United States showed that they are less likely to commit serious crimes or be behind bars than those who are native-born (Ewing, W., Martinez, D.E., & Rumbaut, R.G., 2016). However, regardless of this fact undocumented immigrants are often targeted for deportation for felonies as well as minor offenses.
According to this study, immigrants are less likely than the native-born to engage in either violent or nonviolent “antisocial” behaviors (Ewing, W., Martinez, D.E., & Rumbaut, R.G., 2016). The study also showed that immigrants are less likely than the native-born to be repeat offenders among “high risk” adolescents. Finally, this study showed that immigrant youth who were students in middle schools and high schools in the mid-1990s and are now adults have the lowest delinquency rates among all young people groups (Ewing, W., Martinez, D.E., & Rumbaut, R.G., 2016). Despite these low delinquency rates, there was an increase in the incarceration rates for immigrants from 2000 to 2010 (Ewing, W., Martinez, D.E., & Rumbaut, R.G., 2016). This is most likely due to changes in the enforcement of immigration laws and not so much the increase of criminal behavior from immigrants, especially since more people were being sought out for immigration related offenses. Figure 1 shows the differences in incarceration rates between native- and foreign-born men from 1980 to 2010.
This criminalization of immigrants applies not only to undocumented immigrants but also to legal residents who are not yet citizens. For example, when a person is booked into jail, local authorities usually run fingerprints against the federal immigration and criminal database (Johnson et al., 2015). Fingerprints of county and state arrestees are submitted to the FBI only. However, under Secure Communities, a deportation program that relies on the partnership of federal, state, and local law enforcement agencies, the prints also go through ICE databases (Johnson et al., 2015). If these prints match those of a non-U.S. citizen, then an automated process notifies the Law Enforcement Support Center (LESC) of ICE (Johnson et al., 2015). Note that this applies to legal residents as well (Johnson et al., 2015).
Many immigrant detainees are detained without a hearing, which is a violation of their right to due process. However, in 2015 it was held that a person facing deportation proceedings had a right to a bond hearing. A bond hearing allows the person to go before a judge so that they can decide if imprisonment is necessary. In the 2017 case of Jennings v. Rodriguez, the question was brought up again as to whether it violates the Constitution and immigration law to subject immigrants in deportation proceedings to long-term detention without individualized bond hearings (Garland, S. and Kim, J. J., 2017). The case of Jennings v. Rodriguez challenges the government’s practice of detaining immigrants facing deportation proceedings for months or years without due process. This not only includes undocumented immigrants, but it also includes long-term green card holders and asylum seekers. The Ninth Circuit Court ruled that the government must provide individualized bond hearings to assess danger and flight risk when detention exceeds six months, and every six months after that (Garland, S. and Kim, J. J., 2017).
Immigrant paths to citizenship
There are several means through which an immigrant can obtain legal status in the United States. Immigrant youth can either get a green card through the Special Immigrant Juvenile status (SIJ), U-visas, or relief under the Violence against Women Act (Johnson et al., 2015). The focus in this essay is on SIJ. Adults have forms of relief for immigrant status as well as through Deferred Action for Childhood Arrivals (DACA) and state-specific Dream Acts.
SIJ was created by Congress in 1990. The main purpose of the SIJ program is to help foreign-born children in the United States who have been abused, neglected, or abandoned. This means that certain children who cannot be reunited with a parent can be given a green card through SIJ (USCIS, 2017). Children who get a green card through the SIJ program can then live and work permanently in the United States. In 2008, the Trafficking Victims Protection Reauthorization Act made changes to the eligibility requirement for SIJ status and reworked certain SIJ procedures (USCIS, 2017). There are two key agencies in determining SIJ status, the Juvenile Court and the United States Citizenship and Immigration Services (USCIS) (USCIS, 2017). The Juvenile Court makes the factual findings that concern the care and custody of the juvenile and the USCIS makes the immigration decision, meaning they determine the eligibility for SIJ status for green card decisions for juveniles (USCIS, 2017).
One important thing to note is that if a child receives a green card through the SIJ program they can never petition for a green card for their parents (USCIS, 2017). Children with SIJ cannot petition for a green card for their brothers and sisters until the child becomes a U.S. citizen (USCIS, 2017). In order for a juvenile to be eligible under SIJ the state court must determine that it is not in the best interest of the juvenile to return to their home country, that the juvenile is a dependent of the court, and that the juvenile cannot be reunited with a parent because there is abuse, abandonment, neglect, or a similar reason under the state law (USCIS, 2017). The juvenile must also be under the age of 21 on the date of filing Form I-360 for SIJ, they cannot be married when the form is filed, and the juvenile must be inside the United States at the time of filing (USCIS, 2017).
Once all the eligibility requirements have been met for SIJ status the juvenile then needs to establish eligibility for a green card. Often times a waiver needs to be filed in order to get a green card if the juvenile has certain ineligibilities (USCIS, 2017). A juvenile might not qualify for a green card if they were or are: 1) a risk to people or property because of a disorder, 2) a prostitute or pimp, a drug addict or abuser, or 3) a smuggler for undocumented immigrants (USCIS, 2017). There are some exceptions to these ineligibilities, which means that the juvenile might receive an exemption if they: 1) get medical treatment that controls a dangerous mental or physical disorder, 2) were forced into prostitution, were arrested only once for drugs, and only for 30 grams or less of marijuana, or 3) if they had smuggled only their parents or brothers/sisters into the United States (USCIS, 2017). Additionally, an applicant may be eligible for SIJ if they are exempted from such inadmissibility criteria as the juvenile cannot financially support themselves, they entered the U.S. as a stowaway on a boat or plane, or they are unlawfully present in the United States (USCIS, 2017). As a note, USCIS can waive most disqualifying grounds if the juvenile can show a good reason for waiver such as humanitarian concerns or it is in the public interest.
The most well-known relief for adults was DACA, which was established by executive order by President Barrack Obama. The essay also discusses the Development, Relief, and Education for Alien Minors (DREAM) Act, although the DREAM Act has not been passed despite multiple attempts. These two mechanisms serve two separate purposes but are often times lumped together. It is important to touch upon the history of DACA and its purpose. DACA was implemented by the Department of Homeland Security though a memorandum that was issued on June 15, 2012 (Duke, 2017). The program uses deferred action, which means that prosecutorial discretion by an agency or officer is to be applied only on an individualized case-by-case basis in order to grant certain benefits to undocumented immigrants for which Congress has not specifically provided a law (Duke, 2017).
DACA provides undocumented immigrants who entered the United States before the age of 16 a two-year period of deferred action and eligibility to obtain employment authorization. To be eligible for DACA an applicant has to be under the age of 31, must have continuously resided in the United States since June 15, 2012, and must be currently in school or have a GED (Duke, 2017). Applicants are disqualified if the applicant has been convicted of a felony or a significant misdemeanor (Duke, 2017). DACA was revoked by the President Donald Trump in 2017. However, it has since been reinstated by a recent court decision.
According to the 2018 court case The Regents of the University of California v. United States Department of Homeland Security, the DACA program will continue enrollments with the same terms and conditions that were in effect prior to the rescission but with three exceptions (1) the program does not have to process new applicants; (2) the advance parole feature is not required for the time being; and (3) defendants may take administrative steps to ensure fair discretion is exercised on each renewal application.
In 2014, President Obama signed another executive order, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This order expanded the age range and arrival date of undocumented immigrants as well as lengthened the period of the deferred action and work authorization from two years to three years (Duke, 2017).
Prior to the implementation of DAPA, 26 states challenged the policy announced in 2014 in the Fifth Circuit Court. Ultimately, it was held by the United States Court of Appeals that DAPA violated the Constitution and a temporary injunction was issued in February 2015. This injunction blocked DAPA from going into effect while the lawsuit was pending and in June 2016 the U.S. Supreme Court left the injunction in place by a 4 to 4 vote (Duke, 2017). In October 2016, the Supreme Court denied the request from DHS to rehear the case after the appointment of a new Justice (Duke, 2017). After this denial, both parties in the case regarding DAPA agreed to allow the new administration to review the issue (Duke, 2017).
In January 2017, President Trump issued an executive order titled “Public Safety in the Interior of the United States,” which established new enforcement priorities regarding “removable aliens” (Duke, 2017). For the time, DACA was left in place, but in June 2017, Texas and other states sent a letter to Attorney General Jeff Sessions asserting that the 2012 DACA memorandum was unlawful for the same reasons the Fifth Circuit found that DAPA was unlawful (Duke, 2017). The letter sent by Texas stated that if DHS did not rescind DACA by September 2017, the States would collectively amend the current DAPA lawsuit to include DACA as well (Duke, 2017).
After this letter was received, Trump’s DHS determined that the DACA program should be terminated (Duke, 2017). DHS was provided a limited window in which to make formal decisions on certain requests for DACA and associated applications that were filed prior to issuance of the memo rescinding the program (Duke, 2017). The memo allowed those who currently have DACA to retain both DACA and their work authorization until they expire, unless they are terminated or revoked. The primary concern among immigrants and their supporters is that after a person’s DACA benefit expires, there is no current law that grants any legal status for those individuals. When the period of their deferment expires, individuals will no longer have a deferred status and will no longer be eligible for lawful employment. Nearly 700,000 DACA recipients are directly affected by President Trump’s rescission. Given U.S. District Court judge William Alsup’s order, however, renewal applications for DACA continue to be accepted. Still, there is continuing pressure from anti-immigrant forces to end DACA. With all the confusion surrounding DACA, there has been increased pressure to pass the DREAM Act.
The DREAM Act seeks to address the issue of undocumented immigrants growing up in the United States and who are being denied the opportunity to receive education beyond high school (Johnson et al., 2015). Each year, there are about 65,000 undocumented students who graduate from high school but find it difficult to go to college because of their status (Johnson et al., 2015). These undocumented students are also not allowed to join the military or work in the economy (Johnson et al., 2015). They are left in a limbo status in which they are unsure of where to go or what to do. Many of these undocumented students were brought over at a very young age and do not have much attachment to their home country since they have little memory of their time there (Johnson et al., 2015). As a result, these undocumented students feel more American but are denied the same opportunities given American-born children.
The first version of the DREAM Act was proposed in 2001, and many different versions of the act followed, but none of them have become law (Johnson et al., 2015). The closest a version of the DREAM Act came to becoming law was in 2010 when the bill was passed by the House of Representatives and the Senate came only five votes short of the 60 Senators that were needed to proceed with the Bill (Johnson et al., 2015). Five Democrats voted against it (Kay Hagan of North Carolina, Mark Pryor of Arkansas, Ben Nelson of Nebraska, and Jon Tester and Max Baucus, both from Montana). A new version of the DREAM Act was proposed in July 2017 in the Senate. This version of the Act would allow for current, former, and future undocumented high school graduates and those with a GED to have a three-step pathway to U.S. citizenship through college, work, or the armed services. Under this DREAM Act an individual would be eligible to obtain conditional permanent resident (CPR) status for up to eight years, which includes work authorization if the individual entered the United States when they were under the age of 18, entered four years prior to the enactment of the act, have not committed a crime, and are either currently in school or have acquired a GED. Under the DREAM Act anyone who maintained the CPR status can obtain residency if the individual completes at least two years of higher education, two years in the military, or is employed for a period of three years. It is yet to be seen if this version or future versions of the DREAM Act will finally pass into law.
Additionally, since states cannot legalize the status of undocumented immigrants, some have enacted legislation that helps overcome the issues of higher education that hinder their enrollment. Undocumented students are able to attend state universities and qualify for in-state tuition in 18 states.2 However, even with these policies available in a few states, it is still difficult for some of these undocumented students to receive a higher education. This is because students who have been given the opportunity to attend college do not qualify for federal financial aid such as grants, student loans, work study, and other forms of financial assistance (Ewing, Martinez, & Rumbaut, 2016).
This essay provides just a brief overview of some of the challenges undocumented immigrants face today. Further discussion is needed on a variety of issues, including family separation, the detention of pregnant women, and the violation of civil rights beyond profiling and discrimination. There is also need for further discussion of the rescission and reinstatement of DACA. It is important to note that while DACA is still filled with uncertainty, there may be other resources that can be used by undocumented immigrants to work in the United States legally, such as U-visas, Asylum, and the Nicaraguan Adjustment and Central American Relief Act (NACARA), to name a few. It is important for both undocumented and documented immigrants to be well informed about these issues and the resources available. Likewise, it is crucial for immigrants to be aware of their rights in case they or someone they may know is in a situation in which they are detained or are served an order of deportation. It is also important for the general population to receive factual information about immigration in order to dispel myths and stereotypes that circulate about immigrants.
1Rose Rodriguez is a third year student at the MSU College of Law, where she is the Vice-President of the Latino Law Society.
2The states include California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Texas, Utah, and Washington.
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