Democrats have introduced 20 versions of a DREAM Act that would make lawful status available to undocumented immigrants who were brought here by their parents when they were young children. None of their DREAM Acts got the Republican support needed to make it through the legislative process.
Was the problem that Republicans didn’t want to help DREAMers? I don’t think so.
Democrats could have passed a DREAM Act without a single Republican vote during Barack Obama’s first term in office, and they didn’t do it. From January 2009 to January 2011, they held a large majority in the House, and until Scott Brown’s special election in 2010, they had enough votes in the Senate to stop a GOP filibuster. Even then, they only needed one Republican vote to stop a filibuster.
They have a new opportunity now. Donald Trump wants to help the DREAMers, and he will be sworn in as our president later this month.
Trump offered a legalization program for 1.8 million DREAMers during his first presidency. And in a recent “Meet the Press” interview, he said he is open to working with Democrats on legislation that would permit DREAMers to remain in the United States.
FALSE HOPE ACTS
The DREAM Acts the Democrats have been introducing have had little, if any, chance of being passed. They go too far and don’t include meaningful border security measures. Republicans historically have opposed legalization bills that don’t include effective border security provisions.
The DREAM Act of 2021 is a good example. It would provide legalization for undocumented immigrants who have been physically present in the United States since Jan. 1, 2021; were under the age of 19 when they entered the United States; and have continuously resided in the United States since their entry. This would make lawful status available to approximately 2.7 million undocumented immigrants, not counting the family members they would sponsor.
However, it would have been more appealing if it had limited legalization to DREAMers who were brought here when they were young children. Moreover, it shouldn’t have provided legalization for immigrants in other programs that were just intended to provide temporary status; it would make lawful status available to 393,000 Temporary Protected Status or Deferred Enforced Departure participants, and 190,000 “Legal Dreamers” (migrants brought here legally as children who are aging out of their lawful status).
Furthermore, it doesn’t offer meaningful border security measures.
If I were writing a DREAM Act, I would start with the four-pillar framework that Trump proposed when he offered a legalization program for DREAMers during his first presidency. These are:
- Border security. Provide funds for a border wall and other border security improvements.
- Deferred Action for Childhood Arrivals (DACA). Provide legal status for DREAMers who were DACA participants or were eligible for DACA status but did not apply for it.
- Diversity lottery. Eliminate the Diversity Visa Program and reallocate the 55,000 visas apportioned to the program.
- Eliminate chain migration. Limit family-based visas to spouses and children.
[NOTE: It would better just to prohibit conferring an immigration benefit on the parents who brought the DACA participants here illegally, which can be done by creating a place for DACA participants in the Special Immigrant Juvenile (SIJ) program instead of creating a new legalization program for them. The SIJ provisions prohibit participants from conferring immigration benefits on their parents.]
PROVISIONS TO ATTRACT REPUBLICAN SUPPORT
Flores Settlement Agreement (FSA). Terminate the FSA, which sets forth a “nationwide policy for the detention, release, and treatment of minors” in immigration custody. Let the Department of Homeland Security Secretary establish the immigration detention policies, but require quarterly reports on detention practices to appropriate congressional subcommittees.
The legislative branch should be overseeing the executive branch’s detention policies, not the federal courts. Congress does not have to wait until someone who meets the technical requirements for a lawsuit files a complaint. It has inherent power to oversee the executive branch, and it can provide funds for more humane detention practices — or change the detention laws if the current ones are inadequate.
Trafficking Victims Protection Reauthorization Act (TVPRA). Amend the TVPRA to limit its provisions for unaccompanied children to children who are trafficking victims, and mandate returning those who aren’t trafficking victims to their own countries or to a Central American Minors processing center if they have persecution claims.
The TVPRA provides that an unaccompanied child in government custody should be transferred to the Department of Health and Human Services’s Office of Refugee Resettlement within 72 hours. The Refuge Settlement Office provides a number of services, including an opportunity to apply for asylum. This has encouraged foreign parents to send their children here in the care of smugglers. Border Patrol has apprehended more than 130,000 unaccompanied children a year since fiscal 2021. This has to be stopped.
Former DHS President Obama’s DHS Secretary, Jeh C. Johnson, warned parents not to do this in an open letter: “Children in Central America … must be … discouraged from the unlawful, dangerous path through Mexico, in the hands of a criminal smuggling organization. Last summer I personally saw hundreds of children who made that journey. It brought tears to my eyes. No child should ever face that ordeal; it is not for children.”
Obama established the program that permits unaccompanied children to have persecution claims processed close to where they live instead making the dangerous journey to the United States, and President Biden expanded it.
Credible fear determination. Migrants in expedited removal proceedings who succeed in establishing a credible fear of persecution are given an asylum hearing before an immigration judge. The current credible fear standard just requires the migrant to establish a “substantial and realistic possibility of success on the merits.”
This isn’t working. Over the last 10 years, only 61 percent of the asylum seekers who establish a credible fear file an asylum application, and only 22 percent of the filed applications are granted. A higher standard is needed.
I think that Democrats can succeed in passing a DREAM Act if they are willing to make the kinds of concessions I am suggesting. But that’s a big “if.”
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
