The poster stories of infants and very young children brought to the United States illegally by their parents are meant to present those who support enforcement of American immigration laws with a dilemma. "Look at these poor children", we are told. "They were brought here by their parents seeking a better life and had no control over that choice."
For some as-yet unknown number of persons that is true. But it is not true for all of those who would be covered by most versions of the Dream Act, including the proposed New York State laws we are discussing.
Those laws would cover any person who has been brought to, or arrived in, the United States at any age shy of 18. It is very hard to make the argument that someone who arrives here illegally just shy of being 18 is a "child" as that term is commonly and reasonably understood. They certainly are not infants, and they are not always brought here by their parents.
One of the largest problems with Dream Acts of all varieties at the state and federal level is the problem of incentives. Basically, if you subsidize or reward a behavior, you will get more of it. Illegal immigration and the various Dream Acts now circulating at the federal and state levels are not immune to this very basic economic and psychological dynamic.
Indeed, the way the New York State bill is written, it simply guarantees a rolling, on-going incentive to more illegal immigration. The reason is easy to see.
In the proposed New York State law, there is no cut-off date going forward. Instead of a very targeted, one-time adjustment for those who were truly brought here as infants or very young children (say, for sake of discussion, 11 and below), there is an open-ended statement that "a person must have entered the country before the age of 18". (Note that the age has been raised to 18, from 16 in the original version). An applicant must also be under 35 and have lived in the state of New York for two years at the time he or she applies.
You can get some idea of the critical incentives this language introduces by comparing it to a version of the Dream Act that was introduced in the U.S. Senate by Orrin Hatch in 2003. The language in that bill states its provisions only apply when, "the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry." (emphasis added)
The Senate report on the Hatch Bill makes that point clear: "Because of the residency and age requirements described in Section V of this report, there is no incentive to enter the United States illegally in the future, as anyone who entered the United States after the age of sixteen or who has been in the United States less than five years at the time of enactment will not be able to benefit from this legislation." (emphasis added)
I have italicized the relevant language in both bills to underscore the distinction. In the New York State version, if the bill were passed and signed into law tomorrow those who would be covered could be just shy of 18 in 2012, 2012, 2020, and any year thereafter and still gain its benefit. The New York State residency requirement does nothing to limit the ongoing nature of the legal exemption from U.S. immigration law.
The proposed legislation is the opposite of "narrowly tailored". As now written it is an open, ongoing invitation to violate American immigration laws, complete with the full range of incentives that accrue to anyone who lives and works in the United States.
Few illegal immigrants will make the arduous trip to the United States to become eligible for college financial aid in New York State. But there exists in the United States a substantial list of incentives that are available to illegal immigrants. These inducements include items like the $4.2 billion in refundable tax credits given to illegal aliens last year to the more mundane, less discussed, but very numerous advantages and incentives of a modern, stable, democratic country.
Yet it is not only broken American immigration laws that are an issue in "dream act" legislation. One of the rarely discussed issues of such legislation is it how it addresses serious crime.
Next: New York State's "Dream Act": Committing Most Crimes Is No Barrier