So Much for "No Path to Citizenship" for DACA DREAMers

By Jessica M. Vaughan on August 31, 2012

When President Obama announced on June 15 that he would bypass Congress and offer legal status to the so-called DREAMers, he said: "Now, let's be clear — this is not amnesty, this is not immunity, this is not a path to citizenship." False on all three counts, as it turns out.

The grant of Deferred Action status is obviously an amnesty, as it will allow as many as 1.75 million illegal aliens to stay in this country without fear of deportation and includes a work permit. And, in the hands of the Obama administration, it does in fact provide illegal aliens and their families with immunity from immigration enforcement, and possibly other crimes as well, depending on how officials administer the directive. According to the USCIS website (emphasis mine):

Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS's Notice to Appear guidance ( [author's note: Only the most violent offenders fall into this category]. Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE.

Few should be surprised to find out that, in addition to the amnesty and immunity, there also is a path to citizenship. In a public stakeholder's session in early August, USCIS officials said that approved DREAMers will be allowed to apply for a benefit called "advance parole". Advance parole allows aliens who are seeking permanent residency to travel out of the United States and then be admitted upon re-entry, even if they lack legal status. It is usually granted to people who have a pending green card application and who have what is supposed to be an urgent, compelling need to travel abroad, or to aliens who should be admitted for a good reason that serves the public interest. The DREAMers simply need to come up with an emergency reason to travel abroad, perhaps to their home country (that they supposedly never knew and have no ties to), stay in that country for a brief period, and then return to be admitted with advance parole. It costs only $360 plus travel.

If the rules are interpreted generously (and does anyone doubt that they will be?) those DREAMers who re-enter the country with advance parole may be transformed from illegal aliens with deferred action to "parolees" who are eligible for different treatment under the law. As parolees, they may be considered immune from the penalties for illegal presence that would otherwise prevent them from easily obtaining a green card. Specifically, those who have lived here illegally as adults for longer than six months are supposed to be barred from obtaining a green card for three years (or 10 years if the illegal stay was more than one year) if they depart from the United States. Most illegal aliens seeking green cards have to leave the country to be processed, so this part of the law has been an effective dragnet, if not an effective deterrent to illegal settlement (at least until the Obama administration created a loophole).

Thanks to a two-to-one decision by a panel of immigration judges on April 17, 2012, DREAMers and other illegal aliens who re-enter with advance parole will not be penalized for their illegal presence. The judges decided that an alien's departure with advance parole is not actually a departure, despite what the dictionary says, what Congress said, and what official policy has been for more than 15 years.

As soon as the DREAMers can find someone to sponsor them for a green card, such as spouse, fiancé, or employer, voila — a path to citizenship! And a bonanza for immigration lawyers, too.