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Dr. SerenaCarpenter, lThesisDirector
Nancie Dodge, 3rd
Dean. Barrett. The Honors Collese
Undocumented Students and the DREAM Act: Current Law’s Effect on Undocumented Students and Proposed Reform by Channing Turner
A Thesis Presented in Partial Fulfillment of the Requirements for Barrett, The Honors College
ARIZONA STATE UNIVERSITY April 2010
ABSTRACT Illegal Immigration has become one of the most contested and controversial issues facing United States policy makers today. This analysis focuses on reform for a particular population buried under the inadequate policies of the whole: undocumented students. Under current law, undocumented students face a kind of legal purgatory. Their immigration status does not prohibit access to higher education; however, in many states it enjoins them from receiving state financial aid, in-state tuition, and formal employment. Proposed legislation known as the Development, Relief, and Education for Alien Minors Act, or DREAM Act, would allow these students to earn and use their education as legal residents. This thesis combines policy and literature review with interactive multimedia reporting to connect the law, stories, and impetus for reform.
ACKNOWLEDGEMENTS Thank you to the trusting, patient, and unnamed students, without whom this project would not have been possible, and those advocates and experts willing to step in front of the camera. Thanks to my Thesis Director, Dr. Serena Carpenter; Second Reader, Terry Greene Sterling; Third Reader, Nancie Dodge; and all Walter Cronkite School of Journalism and Mass Communications faculty who contributed vicariously to the project. Also thanks to my ever-supporting parents, the foundation holding it all together.
TABLE OF CONTENTS Page PREFACE…………………………………………………………………….…………...6 CHAPTER 1 INTRODUCTION……………………………………………………….……..…7 2 CURRENT LAW…………………………………………...….………...10 Plyler v. Doe………………………………………….……….…11 Federal Legislation…………………………………..…………...15 State Legislation and Interpretation………………………..….…22 Problems with Current Law……………………………………...24 3 PROPOSED REFORM………...………………………………………...27 DREAM Act Provisions…………………………………………27 The DREAM Act’s Estimated Impact…………………...………29 The DREAM Act’s History…………………………………...…31 4 DEBATING THE DREAM ACT…………………………………….….33 Deportation is the Solution………………………………………33 Rewarding Unlawful Behavior………………………………..…34 Chain Migration…………………………………………….…....36 Conflicts with Existing Legislation……………………………...37 Limited Financial Resources………………………….…………38 Unfair to Citizens………………………………..………………39 Hostile Political Climate…………………………………..……..40
5 PROPOSED CHANGES TO THE DREAM ACT……………………...42 Graduation Requirement………………………………………...43 Employment Requirement…………………………….………....43 Address Undocumented Immigrant Taxes………………………43 Eliminate Permanent Residency Benefit……………………...…44 6 CONCLUSION……………………………..…………………………...45
END NOTES………………………………………………………..…...………………46 APPENDIX A B DOCUMENTARY PROJECT SCREENSHOTS……………………….56 DOCUMENTARY VIDEO DISK………………………………………63
PREFACE “Undocumented Students and the DREAM Act” contains two parts: this policy review and a separate multimedia documentary available on the Web. The two parts were designed to complement each other, the policy review providing rational analysis and the documentary illustrating the human impact of current practices. Though I believe both suggest similar conclusions, ideally, one should not be viewed without reference to the other. This pairing is intended to provide the discourse with a synergy I believe it currently lacks: the interplay between the human face of a policy and the rational considerations that contribute to its adoption. The relative importance of either part can be debated, but it should be uncontested that both play a role in our society’s law and both weigh heavily on the topic at hand. Regardless of my personal views, this analysis is intended to be fair to both sides of the debate over reform. This does not mean, however, that a conclusion cannot be reached. Even an analysis of facts and policies must hint at an intended answer, and I make no pretentions of distancing myself from this eventuality. My experience researching and reporting this subject has shaped my personal views, but I believe that this does no disservice to those who would disagree with me. As I have, I implore all readers to keep an open mind — both rationally and emotionally — and to form their own conclusions.
Chapter 1 Introduction Illegal immigration has become one of the most contested and controversial issues facing United States policy makers today. Many advocates, disgruntled with current policies, support comprehensive immigration reform; however, the issue’s complexity, polarization, and political risk make it a mire for lawmakers and voters. Much of the current system’s inequity comes from its omnibus approach to illegal immigrants — a far from homogeneous population. Immigrants come from diverse backgrounds and face a variety of circumstances — considerations a just legal system should take into account. To create effective reform, immigration law must provide for discrepancies of fallibility and adopt forward-minded policies that ensure just application of legal principles to unique immigrant subpopulations. This analysis focuses on reform for a particular population buried under the inadequate policies of the whole: undocumented students. The circumstances surrounding undocumented students make their situation ethically unique. They arrive as children, accompanied by parents trying to make a new life in the United States. They grow up in American communities, absorb American culture and integrate into American life — many times without knowledge or understanding of their legal status. They attend local primary and secondary schools — some excelling academically — and become heavily involved in their communities. Upon graduation from high school, however, they face tremendous, sometimes insurmountable challenges. Under current law, undocumented students face a kind of legal purgatory. Their immigration status does not prohibit access to higher education; however, in many states
it enjoins them from receiving government financial aid, in-state tuition, and formal employment — considerable challenges to founding a future. Approximately 65,000 undocumented immigrants graduate from high school annually,1 and each struggles with the next step. Despite the obstacles, many undocumented students pursue higher education. Some see college as the necessary next step, eager for the promise of professional employment. Some view it as the most valuable asset they might acquire in a country that views their presence as illegitimate. Others simply don’t know what else to do. For these students, education becomes a race against time and money — before an unexpected incident ends in deportation or private scholarships run dry. Even graduation opens few doors. Those who succeed in earning a diploma face little opportunity for employment in the field of their education because federal and state laws restrict the willful employment of undocumented immigrants. Nonetheless, undocumented students hold out hope for policy change that will allow them affordable access to education and a chance to use their degrees in the United States. Undocumented students feel unequivocally American — lacking only a crucial piece of paper to legitimize their patriotism. They strive desperately for a pathway to citizenship — any way to earn an equal place in the only country they know. The unique plight of undocumented immigrants has not gone unrecognized. Proposed legislation know as the Development, Relief, and Education for Alien Minors Act, or DREAM Act, would allow these students to earn and use their education as legal residents. If passed into law, the Act would grant temporary residency, allowing easier
access to higher education and a pathway to permanent residency upon completion of an undergraduate degree or term of service in the military. However, the unfavorable political climate and policy disagreements have kept the DREAM Act a dream since its initial introduction to Congress in 2001. Opponents claim the Act would allow undeserving immigrants access to limited state resources, encourage chain migration, and reward unlawful behavior. To date, these arguments and an atmosphere of inimical politics have prevailed. However, fervor from activists, educators, and students continuously mounts for reform, and policy regarding undocumented students has become one of the primary issues in the immigration debate. This analysis will discuss the history and problems of current law, impetus for reform, and debate surrounding the DREAM Act in order to establish a clearer view of undocumented students’ place in immigration polity and the need for reform.
Chapter 2 Current Law Current law proves extremely adverse to undocumented students seeking education. The Supreme Court ruling of Plyler v. Doe guarantees all minors residing within the country, regardless of residency status, equal access to state primary and secondary education, but higher education has no such guarantee. While federal law does not explicitly prevent attendance, several pieces of legislation indirectly restrict the ability to attend institutions of higher education by barring access to financial resources and in-state tuition. Specifically, these restrictions come from the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Both acts place strict financial barriers in the path of undocumented students — effectively limiting their ability to attend college. Some sympathetic states have chosen to interpret the statutes in ways that allow them to bypass federal control — California, Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah and Washington — setting their own criteria for state financial aid and tuition rates. However, the legality of these interpretations is tenuous at best. State courts have delivered conflicting rulings over federal preemption, and as a result, state law remains ambiguous and widely varied. In sharp contrast to the ambiguity of aid criteria, the law presents a straightforward answer for undocumented students seeking pathways to citizenship: There are none. Neither federal nor state law allows undocumented students seeking higher education to gain lawful citizenship, leaving them to a life in limbo.
Plyler v. Doe Decided in 1982, the Supreme Court ruling of Plyler v. Doe forbids states from denying children “who were not ‘legally admitted’ into the United States” access to primary and secondary education.2 The Court concludes that according to the Equal Protection Clause of the Fourteenth Amendment all persons residing within the jurisdiction of the United States have a right to primary and secondary education.3 Facts and Initial Arguments The case specifically addressed a Texas statute barring undocumented students equal access to primary and secondary public schools. Before 1975, Texas used fairly standard statutory language to provide children with access to a state education. The law stated under section 21.031 that “(1) all children between six and eighteen years, regardless of their color, were entitled to the benefits of the Available School Fund for that year; (2) that every child in the state between the ages of six and 21 was permitted to attend the public free schools of his or her district; and (3) that the board of trustees of any public free school district in Texas was required to admit, free of tuition, all students between six and 21 who resided in the district.”4 However, in 1975, Texas amended the law to qualify “all students” as meaning only citizens or legally admitted aliens — removing the right to free access for undocumented children.5 Two years later, the Board of Trustees of Tyler Independent School District implemented a policy requiring undocumented students to pay tuition — approximately $1,000 annually.6 A group of Mexican children unable to prove their citizenship filed suit in the United States District Court for the Eastern District of Texas to challenge the statute’s
constitutionality.7 The district court found the Texas statute unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, reasoning that undocumented aliens were entitled to the protection afforded by the Fourteenth Amendment because the Amendment applies to all persons within United States jurisdiction.8 Aliens gain Fourteenth-Amendment protection from the moment they enter the country. After finding basis for constitutional protection, the court sought to find “some rational relationship” between the legislation and “legitimate state purposes.”9 In its defense, Texas argued the statute advanced state interests by managing the “allocation of limited educational revenues.”10 It contended that undocumented immigrants would otherwise take resources away from lawful residents. The court, however, rejected “saving money” as a sufficient justification and found no rational basis for the State’s “policy of exclusion.”11 The court further examined the issue of whether the Texas statute comported with federal law. It viewed the statute in question as inconsistent with the ethos of federal intent, noting that “federal laws consistently demonstrated a strong congressional commitment to education, in particular the education of disadvantaged children.”12 Denying certain children equal access to education contradicted the efforts of federal policy, particularly those “serving low-income families and requiring bilingual education programs.”13 Ultimately, the district court ruled in favor of the children and prohibited the School District from denying free public education to any child based solely on their legal status.14 In re Alien Children Education Litigation
At the same time, the District Court for the Southern District of Texas consolidated five similar complaints into the combined case of In re Alien Children Education Litigation (1979). This time, the court elevated the level of judicial review from a simple rational basis test to strict scrutiny, a more rigorous test of state interest requiring the state to show that the statute was necessary in promoting a compelling governmental interest — that the basis for unequal treatment was not capricious or irrelevant — and that there were no less-restrictive alternatives.15 Again, the court found no such compelling interest to justify the restrictive statute. However, in contrast to Doe v. Plyler, it held that the statute did not inherently contradict federal policy.16 On appeal, the Court of Appeals for the Fifth Circuit affirmed both rulings on the issue of equal protection, but overruled the initial decisions regarding preemption, finding that federal law did preempt section 21.031.17 The Supreme Court The Supreme Court consolidated both cases into one: Plyler v. Doe.18 The Court first examined whether undocumented immigrants are granted protection under the Fourteenth Amendment’s Equal Protection Clause, the guarantee that the government cannot deny any person equal protection under the law. It affirmed the decisions of the lower courts, finding that such protection is not limited to United State citizens but extends “to all persons within the territorial jurisdiction, without regards to any differences of race, of color, or of nationality.”19 Second, the Court sought to establish an appropriate level of judicial review. As established by Court tradition, strict scrutiny of the law only applies in cases “when a law sought to disadvantage a ‘suspect class’ or impinged upon a fundamental right.”20 This
prompted two inquiries: (1) Are illegal aliens a disadvantaged “suspect class,” and (2) Is the right to primary and secondary education a fundamental right? Addressing the first question, the Court found illegal aliens were “persons” as defined under the Fourteenth Amendment and therefore entitled to protection. However, they could not be considered a suspect class.21 Furthermore, the Court found that the right to primary and secondary education is not a fundamental right guaranteed by the Constitution.22 The Court did note that “education is perhaps the most important function of state and local government,”23 and reasoned its importance warranted higher-thanminimal scrutiny. In addition, it considered the circumstances surrounding undocumented minors, concluding that because their entry into the U.S. resulted from acts of their parents, the children could not be held legally culpable,24 and an exclusionary policy toward their education could result in “a lifetime of hardship on a discrete class of children not accountable for their disabling status.”25 The Court therefore settled on an intermediate level of scrutiny, subjecting the Texas statute to elevated standards of justification but not the highest level reserved for breaches of fundamental right. Ultimately, the Supreme Court ruled the Texas statute was unconstitutional based on its significant cost to undocumented children. It found the state’s interest in resource protection and fiscal savings insufficient to justify denying children access to public education.26 Plyler’s Impact Plyler inhibits states from passing legislation that denies illegal immigrants access to free public education. However, the ruling applies only to education through the twelfth grade.27 Had the Court established a basis for strict scrutiny, advocates could
build on a much stronger precedent to justify expansion, and state laws restricting access to public postsecondary education would be unlikely to survive legal challenge.28 However, the Court’s decision to use an intermediate level of scrutiny limits the ruling’s expansion to postsecondary education29 — an expansion some argue is warranted by the decreasing value of a high school-only education in a modern economy.30 Advocates of expansion point to Justice Brennan’s stated fear that denying undocumented students access to education would lead to “the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”31 Brennan’s rationale for protecting education comes from his belief that it is necessary for “self-sufficiency, self-reliance, and participation in society,”32 as well as crucial to “an individual’s economic, intellectual, and psychological well-being.”33 Some argue that this basis supports the underlying rationale for why a right to further education should exist, asserting that the premises applied by Justice Brennan to primary and secondary education in Plyler apply equally to postsecondary education today.34
Federal Legislation Thus far, no law or court ruling has expressly denied undocumented immigrants admittance to institutions of higher education. Nonetheless, federal and state governments have indirectly addressed access by enacting laws that deny undocumented students access to financial aid and in-state tuition rates. These statutes are the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 8 U.S.C. § 1621. “An alien…is not eligible for any State of local public benefit…The term ‘State or local public benefit’ means…any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household or family…by an agency or State or local government…”
Reconciliation Act of 1996 (PRWORA) as part of a larger Clinton-era effort to reform welfare; however, the legislation also prominently addressed undocumented immigrants. The Act’s passage accompanied “intensive anti-immigrant propaganda” and “antiimmigrant initiatives.” In fact, the strong anti-immigrant rhetoric of the time precipitated an unintended 71 percent drop in welfare applications from legal and otherwise eligible immigrants, who were later suspected by policy analysts of “mistakenly believ[ing] they [were] no longer eligible” due to the fervor surrounding the Act’s intended impact on the undocumented.35 In current immigration law, PRWORA denies undocumented immigrants access to federal, state and local public benefits, such as retirement, welfare, healthcare, disability, assisted-housing, education aid, or food-assistance. Regarding education, the term “benefits” includes “postsecondary education…or any other similar benefit for which payments or assistance are provided.”36 Thus, the Act focuses solely on monetary assistance and does not specifically address attendance.37 Additionally, the Act only excludes “non-qualified aliens” from receiving benefits.38 If state or federal governments enact legislation expressly granting
undocumented students qualified status, they would be allowed access to benefits under PRWORA.39 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) 8 U.S.C. § 1623. “An alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State…for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less amount, duration, and scope) without regard to whether the citizen or national is such a resident.” Passed during the same wave of Clinton-era policy aimed at reducing dependence on welfare, fiscal responsibility and anti-immigrant sentiment,40 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) affects in-state tuition requirements for undocumented students. Specifically, section 505 of IIRIRA makes illegal aliens ineligible for postsecondary benefits based on residency — namely in-state tuition rates — unless all citizens of the United States would also be eligible for that benefit.41 In other words, if an institution of higher education grants undocumented students in-state tuition, it must also offer that same tuition rate to all U.S. citizens, regardless of whether they live in- or out-of-state. State universities that allow undocumented students in-state tuition therefore loose additional financial support from out-of-state students — a heavy incentive to make undocumented students ineligible. The Act’s effect on the affordability of college can be drastic. For example, Arizona State University’s in-state residents paid $6,797 of tuition for the 2009–2010 year, compared with an out-of-state cost of $19,382 — a difference of $12,585 a year.42 Combined with PRWORA’s financial-aid embargo, undocumented students are denied
over two-thirds of all financial aid in the United States,43 leaving only private scholarships and employment to make up the difference. While no court has found PRWORA or IIRIRA to prohibit states from admitting undocumented students into public postsecondary schools, they significantly limit undocumented students attempting to pay for college. Their affect on the affordability of higher education is undeniable.44 The Question of Federal Preemption In response to federal regulation, many states have chosen to interpret PRWORA and IIRIRA in ways that still allow them to set their own criteria for tuition rates and state benefits. However, the legality of such interpretations remains in question as state courts deliver contradicting rulings. For example, on November 8, 1994, California voters passed Proposition 187, also know as the “Save Our State” initiative, denying public benefits to undocumented immigrants. The proposition mandated heavier enforcement by requiring that law enforcement, social services, health care and public educational personnel verify the immigration of any suspected persons with whom they come into contact.45 In League of United Latin American Citizens v. Wilson (LULAC II), a California district court sought to determine whether federal law preempted Proposition 187. Should Congress intend federal law to have complete regulatory control over illegal alien benefits, any state law that set a different standard for enforcement would be preempted and annulled. Therefore, the court investigated whether Congress’ intent in passing PRWORA and IIRIRA amounted to “complete federal control or occupancy of the field that the state law regulates.”46
In its inquiry, the court employed a three-part preemption test established by the Supreme Court in DeCanas v. Bica.47 Known collectively as the DeCanas test, the test preempts state law if the statute in question: (1) attempts to regulate an “exclusively…federal power;” (2) if Congress intends “complete federal control or occupancy of the field that the state law regulates, even if the state law does not conflict with federal law;” and (3) if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”48 Applying the three tests, the court ruled California’s Proposition 187 invalid under the second DeCanas test.49 The court interpreted PRWORA to be a “sweeping statement by Congress” and to express Congress’ intention take “full control of the field of regulation of public benefits to aliens.”50 It also ruled that because PRWORA and IIRIRA are comprehensive, “states lack the power to legislate in the area of public benefits for undocumented immigrants.”51 In spite of LULAC II’s ruling, states hardly agree on the issue of preemption. Seven years after LULAC II, a Virginia district court came to the opposite conclusion, finding no basis for preemption. In Equal Protection v. Merten, plaintiffs challenged a policy set by the State’s Attorney General that denied college admission to undocumented immigrants. They alleged that the policy was unconstitutional based on its violation of the Supremacy, Commerce and Due Process Clause.52 Plaintiffs further challenged the legality of the Attorney General’s encouragement of educational officials to report suspected undocumented students to immigration authorities.53 The Merten court used the same DeCanas test but found no basis for preemption.54 Under the first test, the court found a state may implement a policy denying
admission to undocumented immigrants “provided that in doing so, the institutions implementing the policy adopt federal immigration standards.”55 Since Virginia law adopted federal standards in their policy, the court saw no justification for preemption.56 In regard to the second test, the court denied LULAC II’s use as precedent, saying that “LULAC II is neither controlling nor persuasive.”57 The court pointed out PRWORA’s exclusive regulation of financial benefits — it only addresses postsecondary aid: “monetary assistance…not admissions.”58 Contrary to LULAC II, the Merten court found that Congress “has failed to legislate in this field at all and thus has not occupied any part of it, completely or otherwise.”59 Further, the court concluded section 1623 left much to the individual states to decide in legislation.60 Thus, neither PRWORA nor IIRIRA preempted Virginia policy. LULAC II and Merten interpret the issue of federal preemption in completely opposite ways, illustrating the law’s current ambiguity. It remains unclear whether states can set their own criteria for enforcement of immigration laws and the extent of the federal government’s control over state benefits. As a result, state policies that regulate undocumented students’ admission to college and access to state financial aid vary widely from state to state, from outright prohibition to express access. However, the two cases deal only with whether federal legislation controls the manner in which states determine admittance for undocumented students applying to college — in other words, their eligibility status for certain state benefits. It is unquestioned that institutions of higher learning themselves can admit undocumented students under PRWORA and IIRIRA. Interpretation of In-state Tuition
Another contentious interpretation of PRWORA and IIRIRA comes from federal restriction of in-state tuition benefits. PRWORA and IIRIRA do not provide airtight prohibition of in-state rates because they fail to address the manner in which states determine residency.61 Uncertainty arises from unqualified use of the term “benefit” in both acts, raising questions of whether state residency status can be considered a benefit. States sympathetic to undocumented students can choose to interpret the term in a way that grants in-state tuition. Three interpretations have emerged for the term “benefit”: (1) regulation of only monetary benefits such as scholarships or financial aid, (2) regulation of status benefits such as residency status for tuition purposes, or (3) regulation of both.62 If the acts only regulate monetary benefits, states are free to determine their own criteria for residency. However, if the acts regulate residency, states would be reluctant to grant benefits to undocumented students because to do so, they would have to pass a law affirmatively giving undocumented students residency and, due to IIRIRA, offer in-state tuition to all U.S. citizens, regardless of their state residency status.63 For the purposes of its ruling, the Virginia district court in Merten interpreted the term “benefit” as monetary aid, but failed to address the in-state residency distinction directly.64 According to its interpretation, “public benefits” mean only monetary benefits, an interpretation most likely springing from section 1621’s qualification of benefits to include “any…benefit for which payments or assistance are provided.”65 In addition, section 1623 measures “postsecondary education benefits” in terms of “amount, duration, and scope”66 — terms that appear to imply monetary regulation. In-state residency status is not a monetary benefit; it is a status categorization.67 Therefore federal law under the
Merten court’s interpretation would not regulate it. However, the Merten ruling does not extend to the question of residency, and thus the issue remains unresolved. Should a federal court rule in favor of state authority using an interpretation similar to Merten, states would be free to determine their own in-state residency requirements — an approach several states already employ through legislation. In this way, undocumented students can be granted in-state residency based on criteria determined by the state, allowing for much greater flexibility and the opportunity to qualify for lower tuition rates.
State Legislation and Interpretation Circumventing In-state Tuition Regulation Much of how current federal law is applied to in-state tuition regulation regarding undocumented students relies on individual state legislation and interpretation. Despite the seemingly prohibitory statutes enacted by Congress, 10 states have passed laws allowing undocumented students in-state tuition as of the end of 2009.68 Reacting to large undocumented student populations, these states have enacted more affordable tuition polices in hopes of fostering increased school attendance and education levels.69 In response to soaring public-school dropout rates and a deficit in students attending higher education,70 Texas became the first state to pass legislation allowing undocumented students in-state tuition on June 16, 2001.71 The legislation relies on an interpretation of section 1623’s term “benefit” that does not govern residency for tuition purposes.72 It qualifies students for in-state rates provided they (1) resided with a parent, guardian, or conservator while attending a Texas high school; (2) graduated from high
school or attained equivalent of a high school diploma in Texas; (3) resided in Texas for at least three years prior to high school graduation; (4) registered as an entering student at an institution of higher education no earlier than fall 2001; and (5) filed an affidavit with the institution of higher education stating that he or she will apply for legal status as soon as the are able.73 Similar legislation has passed in California, Utah, New York, Washington, Illinois, Oklahoma, Kansas, New Mexico and Nebraska.74 The constitutionality of these laws, however, remains in question. Proponents of such legislation believe it complies with federal law because “IIRIRA focuses on residency requirements, while these laws generally focus on where the student graduated from high school.”75 Opponents contend IIRIRA supersedes such legislation by “prohibiting a state from offering in-state tuition rates to undocumented immigrants unless the same advantage is extended to all United States citizens”76 — interpreting “benefit” to include residency for tuition purposes. Thirty-two states have considered in-state tuition legislation, typically following two legislative models.77 The first model defines residents as “those who have studied in and graduated from a state high school, usually for a minimum of three years.”78 States following this model include Illinois, Kansas, Nebraska, New Mexico, Texas and Washington.79 The second model accomplishes similar results by attempting to “completely circumvent section 1623 by omitting any reference to ‘resident.’”80 This model provides exemptions for payment of out-of-state tuition to students satisfying criteria similar to those in the first model.81 States employing the second model include California, New York, Oklahoma, and Utah.82
However, several states have taken the opposite approach, enacting tougher residency regulation to ensure undocumented immigrants cannot reach state aid. Concerns over undocumented students depleting state financial resources garner heavy support from financially conservative lawmakers and electorates, justifying tighter regulation of in-state tuition.83 Ten states have considered laws that overtly ban in-state tuition for undocumented students.84 Four states have succeeded: Arizona, Georgia, Mississippi and South Carolina.85 Day v. Sebelius No Supreme Court cases have emerged to answer the question of whether states can enact their own laws and criteria, but Day v. Sebelius may be a test case. In 2004, six parents and 18 students brought suit against the United States District Court for the District of Kansas to challenge the constitutionality of a Kansas statute granting in-state tuition rates to undocumented students.86 The plaintiffs contended the law treated them unfairly by offering lower tuition rates to undocumented students while denying similar benefits to lawful citizens with out-of-state residency.87 They claimed the statute violated federal law, including PRWORA and IIRIRA. However, the court dismissed the plaintiffs’ case due to lack of standing. They were unable to prove they had suffered an “injury-in-fact” and therefore lacked appropriate standing to challenge the statute.88 While Day v. Sebelius failed to reach any crucial interpretations, legal commentators believe a similar case could arise with appropriate standing to warrant game-changing court interpretations.89
Problems With Current Law
Current Avenues for Undocumented Students to Gain Legal Status Under current law, most undocumented students have no legal way to self-petition for residency status while remaining in the United States. Under certain Title 8 CFR provisions, undocumented immigrants may petition for a visa while remaining in the country. For example, an undocumented immigrant whose visa has expired may petition for a new visa after marrying a lawful citizen.90 However, undocumented students who enter the country illegally and without any paperwork are prohibited from applying for adjustment of status,91 regardless of their desire to become lawful citizens. Visa Waiting Times Opponents of legalization measures often argue that undocumented students should return to their country of birth and wait their turn to be admitted under standard visa laws. However, the waiting times accompanying visas make them immensely prohibitive for students not willing to put their lives on hold. Lawful permanent residents wishing to bring a spouse or child from Mexico to the U.S. can wait more than six years,92 while citizens petitioning for adult sons or daughters wait more than 15 years.93 Visa allocation standards and numeric caps — currently limited to 226,000 familysponsored and 140,000 employer-sponsored visas94 — have created enormous processing backlogs that cause extensive wait times.95 Such long waiting periods mean undocumented students may abandon their lives in the U.S. for up to a decade. Given the choice, many decide to delay petitioning for legalization unless deported. Employment Eligibility Numerous state and federal laws prohibit the employment of illegal immigrants, making employment eligibility a major hurdle for undocumented students attempting to
reap the benefits of higher education. Inability to gain employment or legal status that might lead to employment “renders the diploma largely ineffectual”96 — leaving otherwise employable and productive students in limbo. Absent a guarantee that education accompanies the possibility of residency status, undocumented students cannot expect to find legal employment. Instead, they attend college to gain one more asset in their struggle for legitimacy, and in the case of deportation, an asset most other countries will gladly allow them to use.
Chapter 3 Proposed Reform: The DREAM Act Faced with the problems and ambiguities of current law, legislators drafted the Development, Relief, and Education for Alien Minors Act (DREAM Act) to provide undocumented students who wish to remain in the United States legally a pathway to earn lawful residency. Senator Orrin Hatch (R-Utah) originally introduced The DREAM Act in 2001 as bipartisan legislation that aimed to “amend IIRIRA to permit states to determine state residency for higher education purposes and to authorize the cancelation of removal and adjustment of status for certain students who are long-term United States residents and who entered the United States as children.”97 In other words, the Act would provide undocumented students an avenue to legalization. The DREAM Act has two goals: resolve the question of whether states can grant undocumented students in-state tuition by repealing IIRIRA; and make higher education and employment more accessible by providing undocumented students an opportunity to obtain conditional residency upon graduation from high school and permanent residence later.98 DREAM Act Provisions To accomplish its goals, the DREAM Act establishes a two-tiered approach for granting permanent residency. The first tier establishes “requirements for cancellation of removal and adjustment of status,”99 meaning eligibility for the DREAM Act’s provision of conditional permanent residence. These requirements include: 1. The alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry.
2. The alien has been a person of good moral character since the date of enactment of this Act. 3. The alien complies with certain sections of the Immigration and Nationality Act (viz. 8 U.S.C. 1182(a), 8 U.S.C. 1227(a)). Specifically, the alien does not present health risks, has not committed significant crimes or been judged a security threat to the nation. 4. The alien, at the time of application, has been admitted to an institution of higher education in the United States, or has earned a high school diploma or obtained a general education development certificate in the United States. 5. The alien has never been under final administrative or judicial order of exclusion, deportation, or removal. 6. The alien has not yet reached the age of 30 years on the date of enactment of this Act. (DREAM Act 2007 Sec. 3) After proving eligibility under the proposed legislation, undocumented immigrants are granted conditional permanent residence, which allows individuals to avoid or cancel deportation.100 The status remains valid for a period of six years,101 during which time the individual must petition for full permanent resident status under second tier requirements. Conditional permanent resident status may be revoked if an individual fails to meet the requirements of tier I, has become a public charge, or receives a dishonorable or other than honorable discharge from the uniformed services.102 During the period of conditional permanent residence, an individual is expected to “petition to remove condition,” gaining permanent resident status.103 Petition requirements boil down to completion of two years of a college degree or two years in the uniformed services. Permanent status is granted after the completion of the following requirements: 1. The alien has demonstrated good moral character during the entire period the alien has been a conditional permanent resident. 2. The alien is in compliance with 3(a)(1)(C) — (Tier I requirement 3) 3. The alien has not abandoned the alien’s residence in the United States…for more than 365 days…
4. The alien has completed at least 1 of the following: a. The alien has acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the United States. b. The alien has served in the uniformed services for at least 2 years and, if discharged, has received an honorable discharge. 5. The alien has provided a list of each secondary school…that the alien attended in the United States. (DREAM Act, Sec. 4, Tier 2) After satisfying tier II requirements and following petition procedure, an undocumented immigrant gains permanent residency.104 Additionally, Section 7(b) provides for employment during conditional permanent residency — “an alien whose removal is stayed … may be engaged in employment in the United States …”105 Section 10 makes students under conditional permanent resident status eligible for government student loans and federal work-study programs,106 making college more affordable.107
The DREAM Act’s Estimated Impact Benefits for Undocumented Students A 2007 Migration Policy Institute report estimated that 360,000 undocumented high school graduates between 18 and 24 years old would be eligible for conditional legal status upon enactment of the DREAM Act,108 and an additional 715,000 students ages 5 to 17 would be eligible in the future.109 Policy analysts predict these individuals, no longer hindered by their legal status, would be more likely to stay in school, become involved in their communities, increase their quality of life and, as a result, generate greater tax revenue for the system.110
Given the opportunity to utilize their education, undocumented immigrants would gain real motivation to complete their education — opportune for a country facing high dropout rates. A survey conducted by former U.S. Secretary of Education Rod Paige indicates that immigrants are more than twice as likely as native-born Americans to drop out of high school.111 In addition, the Hispanic-student dropout rate is close to 45 percent.112 The DREAM Act would relieve undocumented students of the impediments imposed by current law, remove the stigma of their status, and create concrete incentives to stay in school and become more involved in their communities.113 Benefits for the Nation Nationally, higher education levels would create a more skilled workforce, increasing the U.S.’s global competitiveness.114 Many argue that policy promoting the education of that workforce shows a forward-thinking approach to the country’s international competitiveness.115 Furthermore, increased education levels could make long-term fiscal sense. A 2006 Center for Immigration Studies report concluded that the state financial burden of both legal and illegal immigrants correlated directly with their education level.116 It found that “the primary reason illegal aliens create a fiscal deficit is that an estimated 60 percent lack a high school degree and another 20 percent have no education beyond high school.”117 Citing a National Research Council study, the report estimated that an immigrant without a high school diploma creates a net lifetime burden of $89,000 on the state, reduced to $31,000 with a high school education.118 However, an immigrant with education beyond high school provided an estimated fiscal benefit of $105,000.119
Increasing immigrants’ earning potential would provide long-term benefits through increased tax revenue and reinvestment in the economy.120
The DREAM Act’s History Senator Orrin Hatch (R-Utah) first introduced the DREAM Act in 2001. He described the bill by saying: “While I do not advocate granting unchecked amnesty to illegal immigrants, I am, however in favor of providing … children who did not make the decision to enter the United States illegally the opportunity to earn the privilege of remaining here legally.”121 Hatch said the bill was part of his larger effort to create a “fair, compassionate and lawful way to deal with the illegal immigrants already this country.”122 The Act was sent to the Senate Judiciary Committee and placed on the Senate legislative calendar for the 107th Congress, but never received a floor vote,123 meeting with “little initial support or attention.”124 In 2003, Hatch reintroduced the Act to the 108th Congress but again made little progress. Some believe the bill’s second failure can be attributed to its introduction on the cusp of an election year.125 Facing a tight election year, President Bush and other lawmakers may have decided to postpone taking a decisive stance on such a controversial issue.126 Furthermore, despite bipartisan support, the bill’s reintroduction was criticized as an attempt by Republicans to pander to the Latino vote.127 Concerns also emerged over the Act’s impact on “limited state resources,” with several lawmakers claiming “each slot an illegal immigrant takes at a state college or university … is one less spot for American students.”128 Again, disagreement of the Act stalled its progress and it never received a vote.
In 2005, the Act was introduced for a third time by both Senators Hatch and Richard Durbin (D-Ill.), and by the next year, it had made its way as an amendment into the Comprehensive Immigration Reform Act (CIRA).129 As part of the larger bill, the Senate passed the DREAM Act with a 62-36 vote.130 However, perhaps as a result of the CIRA’s complexity or continuing political controversy, its progress halted soon after, stalling until the bill was terminated at the end of the 109th congressional session.131 Faced with the failure of the Comprehensive Immigration Reform Act, the DREAM Act’s sponsors took a more fragmented approach to reform. Senator Durbin authored a new version of the DREAM Act as a stand-alone bill, introducing it to the Senate on March 6, 2007.132 Several provisions of the Act also appeared in a defense bill in September 2007; however, the provisions were removed due to concerns that their inclusion in an unrelated defense bill was inappropriate.133 On October 24, 2007, the DREAM Act failed to meet the required two-thirds majority to pass on a procedural vote.134 With 52 votes, the bill came just eight votes short of the required 60 to pass in the Senate.135 The Act’s failure to pass can be attributed to a variety of political pressures. Immigration’s current status as a hotly debated issue makes lawmakers hesitant to enact legislation that may offend their electorate.136 In addition, differing opinions on how to implement reform and whether it should be passed as a stand-alone bill or included in more comprehensive reform have made reaching a consensus within Congress difficult.137
Chapter 4 Debating the DREAM Act While the DREAM Act has not been reintroduced to the Senate since 2007, debate over its passage continues. Opponents urge alternative measures and raise several policy concerns, both long- and short-term. This section enumerates those viewpoints and offers counter arguments from Act supporters.
Deportation is the Solution Many opponents of the DREAM Act and Comprehensive Immigration Reform call for increased deportation, fence building along the U.S.-Mexico boarder, and laws that “get tough” on undocumented immigrants.138 Such measures have proven popular in several states, buttressed by conservative concerns over use of limited state resources on undocumented immigrants and anti-immigrant sentiment, leading to the enactment of stringent laws and enforcement in Arizona, Georgia, Mississippi and South Carolina.139 While appealing in its straightforward approach to tougher law enforcement, Act supporters believe the “get tough” approach may not be as straightforward as many lawmakers and voters believe. Efforts to tighten enforcement and border security do little to address the economic and social issues that drive immigration, such as high wage earning disparity and family separation,140 the implementation of an extensive deportation policy presents several prohibitive problems. Deportation cannot solve the problem of illegal immigration. First, deportation of all undocumented immigrants is a practical impossibility. The Department of Homeland Security estimated that 10.8 million undocumented immigrants resided within the United
States as of January 2009.141 Many policy analysts doubt the federal government has sufficient resources or personnel to deport even a significant portion of this population.142 Second, little evidence supports the claim that deportation deters new undocumented immigrants from entering.143 Many immigrants belong to mixedcitizenship families containing lawful citizens and undocumented immigrants. These families will be inclined to reunite even after the deportation of a family member.144 Further, deportation removes undocumented minors from the only community they know. Rather than making a new life in a country they know little to nothing about, many undocumented immigrants will choose to remain in or return to the United States, continuing to live in the country without education, earning power, or potential for contribution.145
Amnesty Encourages Further Illegal Immigration by Rewarding Unlawful Behavior Many oppose the DREAM Act because they believe its provision of residency amounts to a policy of amnesty, rewarding immigrants for breaking the law and encouraging further illegal immigration. This concern has been specifically addressed in Congress by Senator Jeff Sessions (R-Ala.), who contends that threatening deportation for unlawful entry while simultaneously granting citizenship sends a confusing and contradictory message.146 To counter such concerns, Senator Richard Durbin (D-Ill.) maintains that the Act would not reward unlawful behavior because eligible minors should not be held responsible for their illegal entry. The responsibility for breaking the law belongs to their parents.147 Capability, he says, cannot rest with minors who “were brought to the United
States when they were very young and did not have the opportunity to make an independent decision about where they would live.”148 Nevertheless, current immigration law criminalizes undocumented minors despite their lack of responsibility.149 Many legal commentators believe the legal responsibility of undocumented students who entered the country at such young ages “is, at best, speculative,” and any alleged deterrence value gained through withholding educational benefits for minors is “a misdirected effort.”150 In no other area of the American legal system do the laws permit the punishment of minors for the actions of their parents.151 Operating correctly, the legal system should impose punishment on those responsible for wrongdoing, not for the misconduct of another.152 This line of reasoning also follows the Supreme Court’s rationale in Plyler v. Doe, which held minors as faultless for entering the country illegally.153 In addition to lack of culpability, the DREAM Act seeks to grant citizenship to only motivated, hardworking immigrants — those willing to contribute and become lawful members of American society. The Plyler opinion noted that by denying basic education to undocumented minors, “the State was in effect barring their ability to contribute back to the country.”154 The DREAM Act addresses this concern by extending benefits only to those immigrants proven committed to giving back through pursuing a college education or enlisting in the military.155 It restricts eligibility to only those individuals with a genuine desire to contribute to their communities — individuals ready and willing to serve as lawful residents.
Pathways to Citizenship Encourage “Chain Migration”
DREAM Act opponents contend that granting undocumented immigrants a pathway to citizenship would encourage a practice called “chain migration,” the use of an Act beneficiary’s status to sponsor additional family members.156 In response, the Act’s original sponsor, Senator Orrin Hatch (R-Utah), explains that the Act was drafted to avoid chain migration. First, the Act would not apply to all undocumented immigrants living in the United States, nor would it affect future immigrants.157 “The Act specifically limits eligibility to those who entered the United States five years or more prior to the bill’s enactment … who already reside in the United States and who have demonstrated favorable equities in and significant ties to the United States,” he says.158 The DREAM Act would not have long-standing effects on immigration law. It simply offers a one-time pathway to citizenship for a narrowly selected group of immigrants already residing in the country.159 It would not create a continuing option for immigration relief.160 Furthermore, the Act would have no bearing on the families of undocumented immigrants. Eligibility for residency under the DREAM Act would only apply to individuals and would not allow family-wide amnesty.161 Indirectly, however, beneficiaries might sponsor immediate family. Should a DREAM Act student gain full citizenship, he or she could petition for immediate family — children, parents or a spouse — to gain residence.162 Nevertheless, this process could still take years, and fear of chain migration pertains only to the immediate family of the Act’s beneficiaries. Should an immigrant decide after earning residency to naturalize, he or she would be permitted to sponsor parents, siblings or a spouse living abroad.163 However, since the Act would only benefit
immigrants who arrived in the United States before their sixteenth birthday, it is likely that any children born to eligible students would have been born in the country and therefore already be citizens.164 Extended family members such as grandparents, cousins, nieces or nephews are not eligible for visas.165 Any family members living in the United States illegally are subject to the same penalties that require them to leave the country for 10 years prior to becoming eligible for a visa.166 Any family member attempting to reenter the country after being previously removed or deported would still be required to follow the ten-year waiting period mandated by the Immigration and Nationality Act before becoming eligible for a visa.167 While the possibly of chain migration exists, its impact is drastically tempered by current restrictions. Finally, should visa requests increase with the passage of the DREAM Act, the wait time would extend even longer.168 The current backlog of visa applications would swell while admittance caps remain constant, further delaying applicants. Family of DREAM Act beneficiaries would still be forced to wait years for legal status, limiting the Act’s effect on immigration.169
The DREAM Act Conflicts With Existing Legislation Challengers and opponents question whether the DREAM Act conflicts with existing federal legislation, citing its radical departure from the objectives of PRWORA and IRCA. However, all three laws can operate simultaneously.170 The DREAM Act does not seek to replace or reverse immigration enforcement as a whole. It only bars deportation of undocumented students and minors upon completion of certain requirements.
Furthermore, the DREAM Act would resolve confusion over enforcement of the IIRIRA at the federal and state level.171 Currently, states rely on differing interpretations of IIRIRA to guide policy regarding in-state residency and benefits. The DREAM Act would remove ambiguity and provide lucid instructions for state enforcement and regulation.172
The DREAM Act Further Stretches Limited Financial Resources The most significant argument against the DREAM Act is the premise that its provisions would stretch limited educational and state resources, burdening already tenuous budgets and leaching off benefits meant for citizens.173 This argument relies primarily on an appeal to fairness, contending that taxpayers should not be required to subsidize the education of illegal immigrants and that their inclusion abuses tax-funded public benefits.174 While this argument has garnered extensive public support from its appeal to fiscal conservation and fairness, some legal commentators believe it relies on several misconceptions regarding undocumented immigrants. The first misconception springs from the belief that undocumented students do not pay taxes. In fact, all undocumented immigrants pay sales taxes on any items they buy, and studies indicate that a majority pay federal income taxes.175 To find employment, many undocumented workers obtain fake work papers and Social Security Numbers.176 They then pay income taxes through their fraudulent Social Security numbers, at times paying more than lawful citizens because their status makes them unable to obtain a tax refund.177 In 2004, Social Security reported that approximately 10% of the Social Security surplus came from undocumented
workers, whose money was collected and stored in “earning suspense file[s]” designed to organize money contributed from incorrect or fictitious Social Security numbers.178 Some analysts believe undocumented immigrants actually subsidize the overall Social Security system by contributing money for benefits they then can never reclaim.179 In addition, Senator Orrin Hatch (R-Utah) believes the DREAM Act will not create a financial burden on state and federal governments. In his 2003 congressional report, Hatch cited an estimate from the Congressional Budget Office on the costs of enacting the DREAM Act.180 It indicated that the increase in direct spending for the student loan provision would not significantly raise costs from 2004 to 2008.181
Granting Undocumented Immigrants In-state Tuition is Unfair to Citizens Opponents claim offering in-state tuition rates to undocumented students is unfair to lawful citizens not afforded the same benefits. Under the DREAM Act’s provisions, state universities would grant undocumented immigrants lower in-state tuition rates while denying the same benefit to out-of-state citizens.182 Some educational institutions also object on the grounds that the Act would deny them added financial support from undocumented immigrants paying out-of-state tuition. In response, advocates contend this argument ignores several basic facts about undocumented immigrants and the DREAM Act. First, undocumented students pay taxes in the state of their residence. They pay the same sales and real estate taxes183 as well as income taxes through false Social Security numbers used to gain employment.184 In fact, the U.S. Social Security Administration has estimated that three-quarters of undocumented immigrants pay income taxes, contributing billions of dollars to Social
Security that they are unable to claim or refund.185 Therefore, undocumented immigrants appear to merit in-state tuition based on the same reasoning it is afforded to in-state citizens. Second, opponents argue DREAM Act beneficiaries would take opportunities away from lawful citizens by filling admission space and receiving limited financial aid. Supporters contend the Act only awards educational benefits to those immigrants that show promise and commitment equal to lawful citizens. The Act does not automatically grant admission to institutions of higher education. Beneficiaries would be required to demonstrate academic eligibility and merit for admission to a college or university same as any student.186 Last, instead of depriving educational institutions of revenue, supporters argue the Act would contribute to higher enrollment, and therefore, generate more tuition revenue. Facing out-of-state tuition rates, many undocumented immigrants choose not to enroll at a college or university, eliminating all potential revenue. Allowing undocumented students in-state tuition may actually boost revenues by making education affordable for more students, providing educational institutions income they would not have otherwise received.187
The Political Climate is Too Hostile to Pass Immigration Reform Political pressures and the controversial nature of immigration policy make both Democratic and Republican lawmakers extremely wary of supporting the DREAM Act.188 Their reluctance pass reform stems from a fear of alienating constituents and public interest groups that hold strong views on the nature of immigration reform.189
Further, the controversial nature of immigration reform polarizes lawmakers, making it hard to establish a clear consensus. Many opponents claim the time simply is not right for passing immigration reform. This response, however, is unacceptable to advocates and students waiting for the Act. They refuse to see the unfavorable political climate a justification for delaying reform because, for them, time is limited. Should the Act be delayed too long, many who are currently eligible will loose the opportunities and benefits promised by the Act. While lawmakers debate the timing of reform, undocumented immigrants face withering possibilities and darkening futures.
Chapter 5 Proposed Changes to the DREAM Act Confronted with the Act’s failure in Congress since its initial introduction in 2001, several legal commentators have suggested changes to the DREAM Act that might aid its passage. These changes attempt to address the concerns of opponents while retaining the legislation’s primary objective: to help committed, motivated minors gain lawful residency.
Graduation Requirement Legal commentator Jessica Sharron, writer for the Santa Clara Law Review, suggests the key to passing the DREAM Act rests in reassuring opponents that beneficiaries will give back to their community.190 In its current form, the Act only requires two years at an institution of higher education, regardless of graduation or completion of a degree.191 Extension of the Act’s requirements to include graduation would highlight the expected social benefit of granting undocumented students residency.192 Sharron believes a graduation requirement would “make clear that what we are seeking is people that actually receive a degree which will provide them the opportunity that I think this bill is determined to provide.”193 Commentator Aimee Deverall, writer for the John Marshall Law Review, also supports a graduation requirement as a method to gage immigrant dedication.194 Deverall believes that opponents need a more concrete promise of long-term benefit. For example, Senator John Cornyn (R-Texas) justified by his vote against the Act because it contains “no firm requirement for the illegal immigrant to graduate with a degree,” and therefore,
no assurance of social benefit.195 Adding such a requirement may win over hesitant lawmakers looking for a more definite payback.
Employment Requirement In addition to a graduation requirement, Sharron also suggests a provision requiring DREAM Act students to maintain employment during their time in school. She likens the period of conditional permanent residency conferred by the Act to that of parole, proposing that, like any individuals attempting to reenter society, undocumented students be required to become “constructive member[s] of society.”196 In her suggestion, Sharron seeks to address merit and financial arguments against the Act. Maintaining employment during school would demonstrate a commitment to excel in education and give back to society.197 Additionally, it would require immigrants to pay income taxes and justify their receiving state and federal benefits, eliminating problems of fairness and financial contribution.198 Commentator Koko Ye Huang, writer for the Seattle Journal for Social Justice, suggests a similar approach involving a training component that would require students to work for one year while attending school or after graduation.199 This requirement would ensure undocumented students gain the practical skills needed for future employment and counter concerns that beneficiaries would become a drain after finishing school.
Address Undocumented Immigrant Taxes To counter financial and fairness concerns, several legal commentators suggest adding provisions that specifically require undocumented immigrants to pay taxes. These
provisions would grant undocumented students Individual Tax Identification Numbers (ITINs) in place of Social Security numbers, allowing them to officially enter the tax system and contribute income taxes.200 Along with a provision mandating employment, ITINs ensure that undocumented students do not receive any subsidized benefits from citizens and legal residents.201 Mandating the payment of taxes guarantees that undocumented students contribute to the funding of federal loans and work-study programs they benefit from, eliminating issues of fairness and financial burden.202
Eliminate Permanent Residency Benefit A more radical approach, proposed by commentator Koko Ye Huang, involves eliminating the DREAM Act’s provision of permanent residency. Huang suggests that limiting undocumented students to provisional residency status would allow them to utilize educational resources and employment opportunities while abating criticism from opponents of amnesty policies.203 By providing extremely narrow allowances and opportunities, Huang believes undocumented immigrants would at least gain social mobility and begin to contribute back to society. They could then pursue residency through traditional means, such as H-1B employment visas or employment-based permanent residency.204 Removing the provision of permanent residency could increase support for the amendment as well as address concerns that undocumented students should not receive preferential treatment over legal immigrants.205 Undocumented students would still find relief from their legal limbo and be free to pursue permanent residency through the same avenues as legal immigrants.206
Chapter 6 Conclusion While arguments can be had on both sides of the debate over the DREAM Act, the evidence — and good conscience — points unequivocally toward providing undocumented students some form of relief from the current policies of immigration law. For them, reform would alter their future from a life of perpetually living in the shadows, unable to utilize their skills and education, to a productive and fulfilling one. For the country, reform would bring a capable and motivated group out of obscurity and into a position to contribute to, and help strengthen, our communities. Yet, lawmakers continue to oppose such reform. What justification for their resistance remains? Appeals to financial concerns strength the case for reform. Appeals to fairness strengthen reform. Appeals to moral uprightness strengthen reform. It would seem the opposition has little to support their refusal in the way of rational policy considerations. Only the political pressures of anti-immigrant public opinion support opposition to the DREAM Act — a tangible enough consideration but lacking in substance. This analysis has illustrated the unacceptability of current immigration law. In so far as the scope of reform offers these inculpable minors a pathway to legitimacy, the case has clearly been made. It follows that the status quo must not stand unchallenged. To delay reform further only increases the gross irresponsibility of our current practices, eroding our country’s commitment to the cherished values we claim to espouse — fairness of treatment, equality of opportunity, and justice for all.
1 Nat’l Immigration Law Ctr. DREAM Act: Basic Information (March 2009), at http://www.nilc.org/immlawpolicy/DREAM/.
2 3 4 5
Plyler v. Doe, 457 U.S. 202 (1982). Id. Doe, 485 F. Supp. at 572.
Jessica Sharron, Passing the DREAM Act for Undocumented Americans, 47 Santa Clara L. Rev. 599, 604(2007).
6 7 8 9
Id. Id. Id. Doe, 458 F. Supp. at 585. See Jessica Sharron, supra note 3, at 604. Id. Doe, 458 F. Supp. at 591. See Jessica Sharron, supra note 3, at 606. Id. Id. at 607. Id. at 608. Id. Id. See Plyler v. Doe, supra note 2, at 210.. See Jessica Sharron, supra note 3, at 608.
10 11 12 13 14 15 16 17
18 19 20
21 See Plyler v. Doe, supra note 2, at 220
22 23 24 25 26
Id. Id. at 222. Id. Id. at 223.
Michelle A. Wheelhouse, Federal Limits on State Benefits for Higher Education, 12 J. Gender Race & Just. 655, 672 (2009).
27 28 29
See Jessica Sharron, supra note 3, at 610. See Joshua A. Boggioni, supra note 28, at 459.
Joshua A. Boggioni, Unofficial Americans – What to do with Undocumented Students: An Argument Against Suppressing the Mind, 40 U. Tol. L. Rev. 453, 459 (2009).
30 31 32 33 34 35
See e.g. Michelle A. Wheelhouse, supra note 26, at 673-674. See Plyler v. Doe, supra note 2, at 230. Id. at 222. Id. Id. at 460.
Welfare Reform: An Examination of Effects, 107th Cong., 1st Sess. 47 (2001) (statement of Linda Burnham).
36 37 38 39 40 41
8 U.S.C. § 1611(c)(1)(B), § 1621(c)(1)(B). See Jessica Sharron, supra note 3, at 610. Id. at 611. Id. See Welfare Reform, supra note 35, at 2. Id. at 612.
42 Ariz. State Univ. Tuition and Cost of Attendance Estimator, http://students.asu.edu/costs (last visited 18 Jan. 2010).
43 44 45 46 47 48 49 50
See Jessica Sharron, supra note 3, at 613. See Joshua A. Boggioni, supra note 28, at 462. Id. Id. DeCanas v. Bica, 424 U.S. 351 (1976). Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 602 (D. Va. 2004) See Joshua A. Boggioni, supra note 28, at 463.
League of United Latin Am. Citizens v. Wilson (LULAC II), 997 F. Supp. 1244, 1254 (C.D. Cal. 1997).
51 52 53 54 55 56 57 58 59 60 61 62 63
See Joshua A. Boggioni, supra note 28, at 463-464. Id. at 464. Id. Id. at 465. Id. at 464. Id. Merten, 305 F. Supp. 2d at 603. Id. at 605. Id. See Joshua A. Boggioni, supra note 28, at 464. Id. at 466. Id. at 468. Id.
64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85
Id. 8 U.S.C. § 1621(c)(1)(B) (2006). Id. § 1623(a). See Joshua A. Boggioni, supra note 28, at 469. Id. Id. at 471. See Michelle A. Wheelhouse, supra note 26, at 674. See Jessica Sharron, supra note 3, at 613. See Joshua A. Boggioni, supra note 21, at 471. See Jessica Sharron, supra note 3, at 614. See Joshua A. Boggioni, supra note 21, at 470. See Jessica Sharron, supra note 3, at 615. Id. See Joshua A. Boggioni, supra note 28, at 469. Id. at 471. Id. Id. Id. Id. at 472 Id. Id. at 470. Id.
86 See Jessica Sharron, supra note 3, at 615.
87 88 89 90 91 92
Id. See Michelle A. Wheelhouse, supra note 26, at 675. See Jessica Sharron, supra note 3, at 616. See 8 U.S.C. § 1154(a)(A)(iii). See 8 U.S.C. §§ 1182(a)(6)(A), 1182(a)(9)(B)(i)(II) (2000).
Aimee Deverall, Make the Dream a Reality: Why Passing The DREAM Act is the Logical First Step in Achieving Comprehensive Immigration Reform, 41 J. Marshall L. Rev. 1251, 1261 (2008).
Visa Bulletin: Visa Bulletin for February 2010, U.S. Dept. of State (February 2010), available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4611.html.
95 96 97 98 99
Id. See Joshua A. Boggioni, supra note 21, at 478. See Jessica Sharron, supra note 3, at 620. Id. at 621. S. 2205, 110 S., 1st Sess., Sec. 3 (2007).
Jeffery N. Poulin, The Piecemeal Approach Falls Short of Achieving the Dream of Immigration Reform, 22 Geo. Immigr. L.J. 353, 354 (2008).
101 102 103 104 105
See S. 2205, supra note 90, at Sec. 4. Id. See S. 2205, supra note 90, at Sec 2. See Jeffery N. Poulin, supra note 91. Id. at Sec. 7.
106 Id. at Sec. 10.
See Jessica Sharron, supra note 3, at 624.
See Joshua A. Boggioni, supra note 28, at 480; New Estimates of Unauthorized Youth Eligible for Legal Status under the DREAM Act, Migration Policy Institute, Oct. 2006, at 1, 4.
109 110 111
See Robert G. Gonzales, Wasted Talent and Broken Dreams: The Lost Potential of Undocumented Students, 24 Immigr. Pol'y 1, 201 (2007).
112 113 114 115
Id. at 202. See Joshua A. Boggioni, supra note 28, at 483. Id. at 481.
See for example See Joshua A. Boggioni, supra note 28, at 483; Aimee Deverall, supra note 92, at 1270.
Immigration’s Impact on Public Coffers, Ctr. for Immigration Studies, <http://www.cis.org/articles/2006/sactestimony082406.html>, (Aug. 24, 2006).
The New Americans: Economic, Demographic, and Fiscal Effects of Immigration, Nat’l Research Council, (1997). A summary of this report is provided on the Ctr. Immigration Studies website at www.cis.org/articles/1999/combinednrc.pdf.
Nat'l Immigration Law Ctr., Basic Facts about In-State Tuition for Undocumented Students 3 (2006).
S.1291, 107th Cong. (2001); S.1545, 108th Cong. (2003); Diane Urbani, Hatch Pushes Immigration Bill, DESERET MORNING NEWS, Aug. 31, 2003, at B1.
Sen. Orrin Hatch on Immigration and Border Security, Feb. 26, 2010, http://hatch.senate.gov/public/index.cfm?FuseAction=IssuePositions.View&IssuePositio n_id=b137379a-ba2b-4c07-a734-4b7d92f65dee
123 See Jessica Sharron, supra note 3, at 626.
124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141
See Jeffery N. Poulin, supra note 91, at 355. See Jessica Sharron, supra note 3, at 637. Id. See Diane Urbani, supra note 109. Id. See Jessica Sharron, supra note 3, at 627. Id. Id. See Jeffery N. Poulin, supra note 91, at 355. Id. at 356. Id. See Michelle A. Wheelhouse, supra note 26, at 680. See e.g. Jessica Sharron, supra note 3, at 628, 638-639. Id. See Aimee Deverall, supra note 93, at 1269. See Joshua A. Boggioni, supra note 21, at 470. See Aimee Deverall, supra note 93, at 1274.
Department of Homeland Security, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009, <www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf> (January 2010), accessed March 20, 2010.
Id. at 1272. Id.
145 146 147 148 149
Id. at 1273 S. Rep. No. 104-224, at 12-14 (2004). See Aimee Deverall, supra note 93, at 1263. Id.
Katie Annand, Still Waiting for the DREAM: The Injustice of Punishing Undocumented Immigrant Students. 59 Hastings L.J. 683, 690 (2008).
150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165
See Joshua A. Boggioni, supra note 21, at 476. See Aimee Deverall, supra note 93, at 1263. See Joshua A. Boggioni, supra note 21, at 476. See Aimee Deverall, supra note 93, at 1264. Id. Id. at 1265. Id. at 1266. See Jessica Sharron, supra note 3, at 628. Id. at 629. Id. See Katie Annad, supra note 131, at 703. See Jessica Sharron, supra note 3, at 629. See 8 U.S.C. §§ 1154. Id. See Aimee Deverall, supra note 93, at 1268. Id.
166 See 8 U.S.C. §§ 1182(a)(6)(A), 1182(a)(9)(B)(i)(II) (2000).
167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185
Id. See Jessica Sharron, supra note 3, at 631. See Aimee Deverall, supra note 93, at 1268. See Jessica Sharron, supra note 3, at 631. Id. at 633. Id. Id. at 628 See Joshua A. Boggioni, supra note 21, at 473. Id. Id. Id. Id. Id. S. Rep. No. 104-224, at 7 (2004). Id. See Jessica Sharron, supra note 3, at 635. See Joshua A. Boggioni, supra note 21, at 474. Id.
See Aimee Deverall, supra note 93, at 1270; Randy Capps & Michael Fix, Undocumented Immigrants: Myths and Reality 1 (Oct. 25, 2005), http://www.urban.org/publications/900898.html.
Id. at 1269. Id. at 1271.
188 189 190 191 192 193 194 195 196 197 198 199
See e.g. Jessica Sharron, supra note 3, at 628, 638-639. See Jessica Sharron, supra note 3, at 637. Id. at 639. See S. 2205, supra note 90, at Sec. 4. See Jessica Sharron, supra note 3, at 635. Id. at 634. See Aimee Deverall, supra note 93, at 1277. Id. at 1278. See Jessica Sharron, supra note 3, at 640. Id. Id.
Koko Ye Huang, Reimagining and Redefining the Dream: A proposal for Improving Access to Higher Education for Undocumented Immigrants, 6 Seattle J. Soc. Just. 431, 458 (2007).
200 201 202 203 204 205 206
See Jessica Sharron, supra note 3, at 641. Id. Id. See Koko Ye Huang, supra note 190. Id. at 459. Id. Id.
APPENDIX A DOCUMENTARY PROJECT SCREENSHOTS
APPENDIX B DOCUMENTARY VIDEOS
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