Wednesday, September 11, 2013

A DREAM Deferred?

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A couple of weeks ago, the United States celebrated as a nation a speech made more than fifty years ago by Dr. Martin Luther King, Jr., who preached acceptance of and dignity for all. Today in the United States there are millions of individuals who face the indignity of not being accepted because of their immigration matter. The prospect of Comprehensive Immigration Reform ("CIR") brought hope to those foreign nationals that they would no longer have to suffer such an indignity. CIR was supposed to be the culmination of what many viewed in the United States as the new civil-rights movement, based not on race but rather on national origin. This movement included the idea that being an “American” did not require one to be born in, or even be a citizen or lawful permanent resident of, the United States. Instead, symbolically, being an American meant being instilled with American values, being raised in the United States, or being a contributing member of American society. If individuals fall into any of such categories, then, as this movement represented, their legal identity should match their symbolic identity.

The shift toward this new definition of what it meant to be an American began to make some actual progress. The debate over elimination of birthright citizenship instead turned toward inclusion of those who carried with them the same ideals that are ingrained in every citizen. For example, first in 2009, the United States Congress amended the Immigration and Nationality Act to permit primary and derivative beneficiaries of pending immigrant petitions to receive lawful permanent residency if they are in the United States despite the passing of the relevant petitioner. Previously, if a petitioner had passed away before the approval of his/her immigrant petition, then the immigrant petition was automatically withdrawn, thereby rendering the primary and derivative beneficiaries of that immigrant petition ineligible. Second, last year, the United States Department of Homeland Security implemented Deferred Action for Childhood Arrivals (“DACA”) to allow certain young people, known as “DREAMers” because they would have benefited from the proposed but defeated DREAM Act, to stabilize their ability to live and to work in the United States despite having no lawful immigration status. DACA became part of an overall shift in policy away from blind enforcement toward prosecutorial discretion. Third, earlier this year, the United States Department of Homeland Security implemented a regulation that permitted certain unlawfully present beneficiaries of immediate-relative immigrant petitions to avoid the uncertainty and long waits associated with returning to their home countries for immigrant-visa processing by allowing them to apply for a waiver provisionally while still in the United States. If the provisional waiver (“I-601A”) is approved, then the foreign national attends the immigrant-visa appointment abroad with confidence that the immigrant visa will be issued in a timely manner so that s/he may return to the United States soon thereafter. Finally, the United States Senate (“the Senate”) earlier this year passed CIR, making those who would benefit from it one step closer to their dream of being accepted in the United States and of having the dignity that comes with such lawful immigration status.

However, when the CIR bill moved to the floor of the United States House of Representatives (“the House”), that dream became indefinitely deferred. First, the Members in the House did not appear as eager to pass CIR as did their colleagues in the Senate. Such lack of eagerness stems from the different politics that exist in the House that do not necessarily exist in the Senate. Second, the United States became focused on the civil war in Syria because of the alleged use by the Syrian government of chemical weapons on those perceived to be rebelling against it. The discussion on whether the United States should use military action in light of the chemical-weapons attack dominated the news stories in the media, which all but stopped reporting on the prospect of CIR. Third, and related to the first two reasons, one of CIR’s strongest driving forces, the President of the United States (“the President”), may have lost any momentum he had with having the House pass a CIR bill similar to the Senate’s, if any, by not garnering the support necessary to obtain a resolution from the United States Congress authorizing the use of military action against the Syrian government. Although the two issues appear at first to be unrelated, their common link is the President’s being a proponent of each, and consistent with the politics that currently exist in the House, the President’s inability to build momentum on one affects such ability regarding the other.

While many remain hopeful that CIR will ultimately pass and become the law in the United States, one must be prepared for the prospect that it will fail and that reliance on the current law and the way in which it is being enforced will remain the only option. While such reliance may not be easy, it may still be beneficial because immigration law in the United States continues to evolve regardless of the United States Congress’s inaction. Such evolution as described above has helped hundreds of thousands if not millions, but the only way to know whether it can be beneficial to a certain individual, i.e., whether the dream of acceptance and dignity may actually be realized, requires confronting one’s immigration matter now rather than deferring it.

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