Deferred Action for the DREAMers

On June 15, 2012, President Barack Obama announced that the so-called “DREAMers”- young people raised in the United States but without legal status – would be granted “deferred action” in two-year increments, as well as work authorization.  “Deferred action” is a form of prosecutorial discretion – a decision not to pursue removal (deportation) of a non-citizen – that does not (in itself) lead to permanent legal status or citizenship. The Development, Relief, and Education for Alien Minors Act (“the DREAM Act”) failed to pass in the waning days of the 111th Congress.  The “deferred action” program covers a population that is in some respects broader and in others more limited than those that would qualify for legal status under the DREAM Act.

To qualify for deferred action, applicants will need to:

• Have entered the United States prior to age sixteen;
• Have continuously resided in the United States for at least five years prior to June 15, 2012;
• Be in school, have graduated from high school, have obtained a general education development (GED) certificate, or have been honorably discharged from the Coast Guard or Armed Forces;
• Have not been convicted of a felony, a significant misdemeanor, or multiple misdemeanors;
• Not pose a threat to national security or public safety; and
• Not be above age thirty.

The Migration Policy Institute has estimated that 1.4 million persons will be prima facie eligible for deferred action under the June 15 directive.  A program of this scope will need to be well-structured and rigorously administered, in order to ensure that all qualifying persons be granted the opportunity to obtain deferred action and that persons who fail to meet the criteria, particularly those who might pose a security or public safety threat, are screened out. It will also require a massive mobilization of community-based organization to educate the public on the program and to assist immigrants in obtaining its benefits.

The deferred action directive came on the 30th anniversary of the US Supreme Court’s decision in Plyer v. Doe, which held that denial of public, secondary schooling to unauthorized children violated the 14th amendment’s equal protection clause.^[1] In that case, the court considered whether a Texas state law to deny funding to school districts with unauthorized students and to permit these districts to deny admission to such children reasonably furthered a substantial state goal. It concluded:

It is difficult to understand precisely what the state hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.  It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.^[2]

State laws like Alabama’s HB 56 have subsequently sought to lay the groundwork for a court challenge to Plyer v. Doe by requiring school districts to collect data on “illegal aliens and students unable to provide proof of citizenship” and to document the number of unauthorized children and the cost of educating them. The sponsors of these measures view them as potentially effective enforcement tools. Others argue that they would create an uneducated, permanent sub-class of US-born persons, without security or prospects. The Obama administration has challenged these laws in court. Its deferred action directive reflects its sense that enforcement resources should not be used to target people who bear no responsibility for their lack of legal status.