Life is But a DREAM and Anchors Away

Many of us remember the always confused character Emily Litella, played by Gilda Radner on Saturday Night Live in the 1970’s. A skit today might go something like this:

“What’s all this fuss about people talking about angry babies and the dream act? Why are babies angry these days and who doesn’t like dreams?”

“Hold on, Emily. They’re talk­ing about immigration issues – Anchor Babies, born in the U.S. to foreign nationals, and The DREAM Act, a bill in Congress.”1

“Oh. Never mind!”

Currently there are two vulnerable groups in the immigration spotlight: babies born in this country to undocumented foreign nationals who are citizens by birthright (so-called “Anchor Babies”)2 and youth who arrived here as minors and have been educated in our system but lack legal immigration status. The commonality of the two is that their status, or lack thereof, was determined by the acts of their parents.

In the case of babies born in the United States, the law has been settled since the passage of the 14th Amendment in 1868 that citizenship is a birthright: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The 14th Amendment overthrew the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. 393 (1856), which had denied citizenship to children of slaves born in this country. One hundred and fifty years later, there is a movement to take away citizenship rights of the offspring of another disenfranchised group residing in this country, the expanding undocumented population.

“Anchor Baby” implies that a baby born here can anchor its parents to the U.S. In fact, a baby cannot provide an anchor into the U.S. to its undocumented parent. The Immigration and Nationality Act of 1965, which amended Title 8 of the U.S. Code, requires that a U.S. citizen child must be twenty-one years of age to sponsor a parent. Even if an adult son or daughter desires to sponsor a parent, the parent who entered the country without inspection by immigration doesn’t qualify for residence due to the unlawful entry or presence in the U.S.

The only time a U.S. citizen child could serve as an “anchor” is when the foreign national is facing removal from the U.S. and has 10 years of good moral conduct prior to commencement of proceedings. Rather than trying to repeal the 14th Amendment to eliminate birthright citizenship, it is proposed that several states will offer children of undocumented foreign nationals a differentiated birth certificate and will undoubtedly be challenged in the court.

While laws are being drafted to prevent children born in the U.S. – to undocumented foreign nationals – from becoming U.S. citizens, another law, the DREAM Act, has been repeatedly presented in Congress since 2001 to give legal status to undocumented youth. The premise of the DREAM Act is to offer a legal status to undocumented youth educated in our school system who are hampered in their development by their lack of legal immigration status. It is estimated that approximately 65,000 undocumented students graduate from high school each year. The proposed law provides for a conditional status to those who arrived in the U.S. before age 16, lived in the U.S. for five years, and graduate high school (including through a GED program). The right of children to receive a public education, regardless of immigration status, has been upheld by the Supreme Court, in Plyler v. Doe, 457 U.S. 207 (1982).3

One argument in favor of the DREAM Act is that it makes no sense to provide educational opportunities to youth and then deny them the ability to move forward with their futures because of their lack of legal standing. Without legal immigration documents they cannot have a Social Security number or driver’s license and they cannot join the military.

The House Bill, H.R. 6497, underwent numerous amendments and, ultimately, succeeded in passing. The Senate agreed to consider the House bill rather than its own version of the DREAM Act, S. 3992. One important point in favor of the Act was to make conditional status be for 10 years before a permanent resident status could be attained. The Immigration and National­ity Act requires five years of permanent residence, with exceptions, to be eligible for U.S. citizenship. Postponing permanent status and eventual citizenship may thwart a snowball effect of DREAM Act beneficiaries’ sponsorship of family members. As with the Anchor Baby debate (also referred to as “chain migration”), immigration restrictionists appear to fear a geometric progression of immigration expansion.

A study by the Congressional Budget Office determined the DREAM Act would result in billions of deficit-reducing economic gains as enactment would, over the long term, lead to higher earning power for its participants and more tax revenue for the government. Some agencies, such as the Department of Labor and the Social Security Administration, are looking toward immigration to balance the declining birth rate of U.S. citizens. This would seem to be an argument in favor of birthright citizenship as well as legal status for youth raised in this country.

A significant feature of the DREAM Act is the requirement that initial conditional status can be made permanent by completing either two years of college or two years in the military.

The Department of Defense’s Fiscal Year 2010-2012 Strategic Plan states that the DREAM Act is a smart way to expand its recruitment pool.4 In September 2010, the DREAM Act was actually attached to a defense-spending bill because of the close connection to the needs of the military, but the Senate failed to act on it in that format. Despite support from diverse sectors, the Act has been vehemently opposed by anti-immigration factions who are against legislation that proposes to give amnesty to immigration law-breakers.

There are basically two ways that a person in the U.S. can be undocumented: entry without inspection at a place other than an official designated point, or entry with a visa and then overstaying its authorized time allowance.5

It is far easier for a foreign national to obtain a visa coming from an industrialized country than from a poorer country. A large percentage of immigrants who enter without inspection overland, as opposed to overstaying a visa, would be ineligible for benefits under the DREAM Act because they often immigrate after age 16 when they can cope with the rigors of the journey. Even those who are brought here at a younger age from the less developed agrarian countries have limited education in their native lands and may drop out of school before graduating because they cannot keep up with the academics.

It can be anticipated that a good number of those who might initially qualify for conditional status could have difficulty complying with the requirement to complete college or military service to gain permanent residence. The proposed filing fees of over $2,500 provide a short term economic gain for the government, but may be unrealistic for young people who are students and may not have parental support. If participants fail to comply with the Act’s requirements, they can be referred for removal from the U.S. to a country they barely know.

If the DREAM Act had passed, it could have postponed further consideration of a more comprehensive approach to immigration reform that could benefit wider segments of the foreign national population. There is danger that the DREAM Act can be offered in Congress as a trade-off in the future for harsher enforcement measures that are considered by immigrant advocates as already draconian.

Despite the shortcomings of the DREAM Act, hundreds of thousands of young people would have benefitted from its provisions and the opportunity to be on a path toward citizenship. The proponents of the bill have vowed to continue the fight for its passage and, someday, the dream that they dare to dream really may come true. Handicapping the youth who are our future, by giving them second-class citizenship or no opportunity to become lawful residents of the country where they live, may have dire consequences in the long term, and should be carefully weighed as the debate on immigration continues.

Linda G. Nanos a practicing immigration attorney serves as a Co-Chair of the “Bridge Over Language Divides” NCBA (BOLD) Task Force.

1. The DREAM Act, acronym for Development, Relief and Education for Alien Minors Act, has been introduced repeatedly since 2001 in Congress and has yet to pass.
2. The Supreme Court has upheld the refusal by the Immigration and Naturalization Service (INS) or Immigration and Customs Enforcement (ICE) to stay the deportation of illegal immigrants merely on the grounds that they have U.S.-citizen minor children, e.g., “anchor babies.” Immigration and Naturalization Service v. Jong Ha Wang, 450 U.S. 139 (U.S. Supreme Court, March 2, 1981); Immigration and Nationality Act of 1965 (“Hart-Celler Act”) (INA), Pub.L. 89-236,
3. In Plyler the Court reviewed a revision to the Texas education laws in 1975 that allowed the state to withhold from local school districts state funds for educating children of illegal aliens. 4. FY 2009 Annual Report Joint Strategic Plan (September 30, 2009), VA/ DoD, Joint Executive Council.
5.Terms that are used for undocumented individuals include undocumented immigrant, illegal immigrant, undocumented alien, unauthorized migrant, illegal migrant, illegal alien, migrant, or undocumented worker. Illegal Immigration, U.S. Immigration Support (2010), www.usimmigration