President Obama’s original 2012 executive action creating Deferred Action for Childhood Arrivals stipulated that to be eligible, recipients must have “not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offense, or otherwise pose a threat to national security or public safety.” When Obama announced the criteria for renewing DACA status in 2014, “multiple misdemeanor offense” was changed to “three or more misdemeanors.”
The Obama administration defined a “significant misdemeanor” as a crime with a maximum sentence of one year, or, regardless of length of sentence, “an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence.”
With the Dream Act of 2017, Graham, Flake, Durbin and Schumer have adopted much of the existing Obama-era criteria about crime, but in a way that would allow Department of Homeland Security officials to be much more lenient with newly legalized DACA recipients.
The Dream Act would exclude anyone who has been convicted of “any offense under federal or state law, other than a state offense for which an essential element is the alien’s immigration status, that is punishable by a maximum term of imprisonment of more than one year; or three or more offenses under federal or state law, other than state offense for which an essential element is the alien’s immigration status, for which the alien was convicted on different dates for each of the three offenses and imprisoned for an aggregate of 90 days or more.”
The phrase “other than a state offense for which an essential element is the alien’s immigration status” could excuse a lot of criminal activity. “It would grant status to illegal aliens who have been convicted of felony ID fraud or other crimes that could be considered to be related to their immigration status,” noted Jessica Vaughan of the Center for Immigration Studies, which favors tighter restrictions on immigration. “You could say human smuggling, document fraud, benefits fraud, false claims to citizenship, illegal voting, and many other felonies have an essential element that involves immigration status.”
In addition, Graham, Flake, Durbin and Schumer throw in the phrase “for which the alien was convicted on different dates for each of the three offenses” when referring to misdemeanor convictions. Many crimes involve multiple charges. The Dream Act of 2017 would require a young Dreamer to have committed offenses on not one, not two, but three separate occasions, and been convicted of all before he or she is ineligible for legalization.
And maybe not even then, because Graham, Flake, Durbin and Schumer would also allow the Secretary of Homeland Security to waive any denial of legalization for those crimes, or for more serious crimes, “for humanitarian purposes or family unity or if the waiver is otherwise in the public interest.” In other words, Department of Homeland Security can legalize whomever it chooses.
“These standards are significantly more lenient than other legal immigration categories,” noted Vaughan. “Green card and temporary visa categories have stricter requirements for good moral character and criminal behavior.”
The Dream Act of 2017 differs in other ways from DACA. For example, Obama’s order applied to people who were under the age of 16 when they came to the United States. In the Dream Act, the age is 18. Obama required recipients to have been living continuously in the United States for at least five years. In the Dream Act, it’s four years. Obama required that a recipient “be present in the United States on the date of this memorandum,” that is, on June 15, 2012, when DACA was announced. The Dream Act has no similar requirement.
Graham, Flake, Durbin and Schumer introduced the Dream Act of 2017 back on July 20, before the current DACA controversy. Since then some other senators have signed on as co-sponsors: Republicans Cory Gardner and Lisa Murkowski and Democrats Kamala Harris, Dianne Feinstein, Catherine Cortez Masto, and Michael Bennet.
“We’re ready to pass it,” Schumer said recently, calling on Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan to bring the bill up for a vote in Senate and House.
And just in case Congress is not ready, Schumer threatened to attach the Dream Act to must-pass legislation this fall. It could be a long fight.
Byron York is chief political correspondent for The Washington Examiner.