On March 26, 2009, Senator Richard Durbin (D-Ill.) re-introduced the Development, Relief, and Education for Alien Minors Act of 2009, otherwise known as the DREAM Act (S.729). Companion legislation entitled the “American Dream Act” (H.R. 1751) was also introduced in the House of Representatives by Rep. Howard Berman (D-Calif.) on March 26, 2009. The DREAM Act has two major components: (1) it grants amnesty to illegal aliens who entered the country as children and have met minimal educational requirements; and (2) it reverses current law to allow states to provide taxpayer subsidized in-state tuition to illegal aliens. The language in the 2009 Senate version of the bill is identical to the Senate bill introduced in the 110th Congress (S.774), with one exception: in this year’s Senate bill, any alien who is older than 35 is ineligible for the stay of removal and adjustment to conditional status. Last year’s Senate bill and this year’s House bill contain no age limit for eligibility.
The DREAM Act creates a tiered system to grant amnesty to illegal aliens who arrived in the U.S. before the age of 16. While the Senate bill limits eligibility to aliens who are younger than 35 as of the date of enactment, the House bill contains no age limit for eligibility. (Section 4(a)(1)(A) and (a)(1)(F)). • • Illegal aliens who are at least 12 years old and are enrolled in primary or secondary school are eligible for a stay of removal. (Section 7(b)). Illegal aliens who have obtained a high school diploma or a GED, or have simply been admitted to an institution of higher education, are eligible for conditional LPR status. There is NO CAP ON THE NUMBER OF ALIENS who may receive conditional LPR status and such status MAY BE EXTENDED INDEFINITELY (Sections 4(d) and 5(d)(2)(B), respectively). An illegal alien who has obtained conditional LPR status under the act and subsequently complete at least 2 years of a degree program or 2 years in the uniformed services (and if discharged, was honorably discharged) is eligible for legal permanent resident status (LPR status).
Stay of Removal: Under the DREAM Act, the Attorney General shall stay the removal of any alien who: o Was continuously present in the U.S. for at least 5 years prior to enactment of the DREAM Act. (Sections 7(b)(1) and 4(a)(1)(A)). Continuous presence is not terminated by the initiation of removal proceedings. (Section 4(b)). Under the Senate bill, the alien is permitted to have left the country for up to 90 days at a time for a maximum of 180 days. (Section 4(c)(1))(Note: in the House bill, the alien is considered to have maintained continuous presence so long as any absence was “brief, casual, and innocent,” but there is no 90/180 day test). DHS can extend these periods for exceptional circumstances, such as illness or death of the alien or a relative. (Section 4(c)(2)); o Was under 16 years of age at the time of initial entry into the U.S. (Sections 7(b)(1) and 4(a)(1)(A)); o Has good moral character since the time the alien applied for status under the DREAM Act. Good moral character is not required for the time prior to application. In other words, DHS cannot consider past acts committed by an alien which may demonstrate that the applicant does not possess good moral character. For example, a violent criminal gang member who has never been convicted of a crime would be eligible for a stay and conditional status and could not be excluded even if the alien had committed numerous heinous felonies. (Sections 7(b)(1) and 4(a)(1)(B)); o Is not subject to a final order of exclusion, deportation or removal entered after the alien was 16 years of age. (Sections 7(b)(1) and 4(a)(1)(E))(Note: this limitation is only present in the Senate bill and is not in the House bill); o Is neither inadmissible or deportable because the alien: (1) Was convicted of committing certain crimes; engaged in drug trafficking, or engaged in a terrorist...