Are Democrats really serious about passing a DREAM Act in 2021?

The Democrats have been introducing DREAM Acts for 20 years. Some of them have passed in the House, and others have passed in the Senate, but none has passed both. Their most recent attempt just passed in the House, and — as currently written — it’s not likely to fare well in the upper chamber.

The most recent attempt is titled the “American Dream and Promise Act,” H.R. 6, but in view of all the previous failed attempts, it might more aptly be called the “False Hope Act.” 

Twenty years is a long time, and the Democrats have no one to blame but themselves.

They could have moved a DREAM Act through the House and the Senate without a single Republican vote when Barack Obama was president, and he would have signed it into law. From January 2009 to January 2011, Democrats had 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 Republican filibuster.

Do the Democrats really want to enact a DREAM Act?

If the Democrats who introduced the new DREAM Act in the House wanted it to pass in the Senate too, why did they include provisions that will make it easy for the Senate Republicans to stop it from being considered?

And why did they make it so one-sided? It seems to have been written to please the demands of Democratic constituents with little, if any, thought given to making it acceptable to the Republicans.

This is really unfortunate. Some of the Dreamers have been waiting 20 years for the enactment of a DREAM Act. 

Achilles’ heel

H.R. 6 includes provisions that would provide lawful permanent resident (LPR) status for aliens who have had or were eligible for temporary protected status (TPS) on Jan. 1, 2017. This would include aliens from Somalia, South Sudan, and Syria. TPS grants to aliens from these countries have not expired yet.

A single Republican can prevent a bill with TPS legalization provisions from being considered in the Senate with a point of order objection based on INA §1254a(h), which provides that it shall not be in order for the Senate to consider any bill that would grant lawful temporary or permanent resident status to any alien receiving TPS status.

This restriction can be waived, but that would require an affirmative vote of three-fifths of the senators. This means that if all 48 Democratic senators — as well as independent Sens. Bernie Sanders (Vt.) and Angus King (Maine) — were to vote to waive the restriction, they would still need ten votes from Republican senators.

They weren’t able to get 10 of the 211 Republicans in the House to vote for H.R. 6, and it is likely to be even more difficult for them to get 10 of the 50 Republicans in the Senate to vote for waiving the restriction.

It’s not too late to save H.R. 6

If the Democrats really do want a DREAM Act, they should remove the TPS provision, but that isn’t the only change they should make.

They will need ten Republican votes to stop a filibuster, and a filibuster is a virtual certainty if the Democrats don’t make H.R. 6 less objectionable to the Republicans.

Revise the bill’s waiver provision

The bill provides a waiver for a number of the exclusion grounds in the Immigration and Nationality Act “for humanitarian purposes, for family unity, or because the waiver is otherwise in the public interest.”

These requirements are so vague that it is hard to imagine a situation in which an alien would not be able to establish eligibility for a waiver, and it waives too many exclusion grounds.

The appeal of a legalization program for Dreamers is diminished by making the ones who have committed crimes in the United States eligible for lawful status. It would be better to hold off on legalization for Dreamers who do not have spotless records until a more comprehensive legalization program is established.

Remove the provision exempting LPR grants from numerical limitations

Immigrants who are trying to come here lawfully have very long waits for a visa because of the numerical limitations. It would be unfair to exempt aliens who came here illegally from those limitations.

Add fraud provisions

Benefit application fraud is a very significant problem. DHS has had to establish a special unit to deal with it. H.R. 6 should include fraud provisions like the ones that were used in the last legalization program, which was established by the Immigration Reform and Control Act of 1986 (IRCA), and which states: “Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or … uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined … or imprisoned not more than five years, or both.”

Make the parents of the Dreamers ineligible for derivative LPR status

Even former President Donald Trump wanted to help the Dreamers. Republican sympathy for Dreamers, however, doesn’t extend to the parents who brought them here illegally. The parents can be legalized later when a more comprehensive legalization program is established.

Remove provisions for free counsel

No other aliens get free counsel in immigration proceedings.

The bill would provide applicants with administrative and judicial appeals if their applications are denied. The only agency with the experience needed to handle such appeals is USCIS, and they are overwhelmed with work already. They had a backlog of more than 350,000 affirmative asylum applications when the USCIS Ombudsman made his most recent report to congress.

These suggestions might help get 10 Republican votes in the Senate, but they aren’t likely to be considered if I am right in thinking that H.R. 6 is really just another false hope act — aimed more at the next election than effecting real change for Dreamers.

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. Follow his blog at https://nolanrappaport.blogspot.com.