The difference between 'DACA' and 'Dreamers': A primer

The difference between 'DACA' and 'Dreamers': A primer
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The government shutdown ended Monday when Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP leader criticizes Republican senators for not showing up to work Reforms can stop members of Congress from using their public office for private gain Name change eludes DHS cyber wing, spurring frustration MORE (R-Ky.) promised to take up an immigration bill that would protect an estimated 800,000 Dreamers from deportation under an open amendment process, if the Democrats would agree to end the shutdown. Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerReforms can stop members of Congress from using their public office for private gain Election Countdown: GOP worries House majority endangered by top of ticket | Dems make history in Tuesday's primaries | Parties fight for Puerto Rican vote in Florida | GOP lawmakers plan 'Freedom Tour' Senate Democrats should stop playing politics on Kavanaugh MORE (D-N.Y) said that pledge was enough for his caucus to accept a three-week government funding bill, which passed on a vote of 81-18. 

But what do the parties really intend to take up? A DACA-fix for the 690,000 current participants or a DREAM Act to provide a path to citizenship for 2.7 million undocumented aliens?

And who are the Dreamers?

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DREAM Act advocates typically claim that Dreamers are undocumented immigrants who were brought here illegally as children and have grown up in America knowing nothing about their own countries, but that does not describe the eligibility requirements for the DREAM Act or for DACA.

DACA

The Deferred Action for Childhood Arrivals (DACA) program was established in June 15, 2012, when DHS announced that aliens who had been brought to the United States illegally as children and met other criteria would be considered for temporary lawful status with work authorization.

To establish eligibility, an undocumented alien had to show that he or she:

  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching the age of 16;
  3. Had continuously resided in the United States since June 15, 2007;
  4. Was physically present in the United States on June 15, 2012, and at the time of making the DACA request;
  5. Had no lawful status on June 15, 2012;
  6. Was currently in school, had graduated or obtained a certificate of completion from high school, had obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Armed Forces of the United States; and
  7. Had not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety.

According to the Pew Research Center, the average age of the current DACA participants is 24. Two thirds are 25 or younger.

Most (83 percent) were unmarried at the time of their most recent application. Nearly half (45 percent) of them live in California (29 percent) and Texas (16 percent). Illinois (5 percent), New York (5 percent), Florida (4 percent) and Arizona (4 percent) also have significant populations of active DACA recipients.

The DREAM Act.

“DREAM Act,” by contrast, is an acronym for “Development, Relief, and Education for Alien Minors Act.”

The Democrats have been trying unsuccessfully to get a DREAM Act passed for 16 years. The most recent one, the Dream Act of 2017, was introduced in the Senate on July 20, 2017. An identical version was introduced in the House on July 26, 2017.

Neither has had hearings or markups before committees with subject matter jurisdiction, which is required by what is referred to as the “regular order.”  

The Dream Act of 2017 provides that, “Notwithstanding any other provision of law, the (DHS) Secretary shall” grant lawful permanent resident status on a conditional basis to an undocumented alien who:

  1. Has been continuously physically present in the United States for four years preceding the bill's enactment;
  2. Was younger than 18 years of age on the initial date of U.S. entry;
  3. Is not inadmissible on specified criminal, security, terrorism, or other grounds;
  4. Has not participated in persecution;
  5. Has not been convicted of specified federal or state offenses; and
  6. Has fulfilled specified educational requirements.

It also provides that the secretary may waive the specified grounds of inadmissibility “for humanitarian purposes or family unity or if the waiver is otherwise in the public interest.”

The age requirement would permit aliens to qualify who grew up in their own countries and were not brought to America until they were almost 18 years old.

If the Senate passes the DREAM Act of 2017, it almost certainly will be dead on arrival in the House, which is what happened four years ago when Schumer, as part of the Gang of Eight, succeeded in getting an immigration bill passed in the Senate that was opposed by 70 percent of the Senate Republicans

It would be more realistic to pass a bill that would just continue the DACA program for the current participants, but even that would fail if Trump will not sign it unless it includes a border wall, an end to chain migration, and an end to the Diversity Visa Program.

In any case, the floor debates and their media coverage will be easier to understand if the senators are clear about who they are trying to help and how they want to help them.

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.