On Monday, the Star-Telegram published a story about two female DACA recipients in Fort Worth who have been waiting for a solution to the program that the Trump administration rescinded in September.
Readers posed several questions through emails and the comments section about undocumented immigrants. We asked three legal experts for answers. We consulted Edwardo Meza, a Fort Worth-based attorney who specializes in immigration law; Daniel Hernandez, an attorney at Texas Mexico Law in Fort Worth; and Kathleen Campbell Walker, an attorney in El Paso and a former national president of the American Immigration Lawyers Association.
Answers have been edited for clarity.
Why don’t undocumented immigrants pursue the path to citizenship?
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Edwardo Meza: A large majority of undocumented immigrants have a family petition in process and are waiting for their priority date to become legal permanent residents (LPRs) first. Once they are LPRs, they must either wait three years (through a marriage petition to their U.S. citizen spouse) or five years (all other family petitions) before they are eligible for applying for citizenship.
The immigrants who submit a family petition other than a marriage petition to become an LPR must wait several years before their application is eligible for obtaining LPR status. The backlog is very long. Immigrants aren’t becoming LPRs quickly, so ultimately they're not obtaining their citizenship because they are waiting to become LPRs first.
Daniel Hernandez: Because currently, the immigration system is flawed and there isn’t a simple way to citizenship. That’s where we advocate and meet with our clients to find them the right path, when there is one. Better yet, we prepare those who don’t currently have a path in hopes of immigration reform.
Kathleen Campbell Walker: Because due to our restrictive legal options (family, business, humanitarian), most undocumented immigrants do not have legal avenues through family or employment relationships and often cannot access humanitarian protection, such as refugee or asylum status. In addition, even if a path is available, the path is a very long and time-consuming one.
The Ombudsman for U.S. Citizenship and Immigration Services (USCIS) provided the following example: The wait for a Mexican-born adult son or daughter of a U.S. citizen for an immigrant visa is approximately 20 years. If the spouse of that adult son becomes a citizen after five years and applies for her Mexican citizen brother to immigrate to the U.S., then it would take another 20 years or more of waiting for that brother to be able to immigrate.
What happens to undocumented immigrants and/or DACA recipients who commit crimes? Do they lose their DACA?
Edwardo Meza: Undocumented immigrants and DACA recipients are usually held in custody with an Immigration and Customs Enforcement (ICE) hold. This prevents them from paying a county bond and being released back out to the community at large. Instead they are transferred directly to ICE, usually within 48 hours, if they pay the county bond. Thereafter, while in ICE custody they may request a bond directly through ICE or through an immigration judge. However, some immigrants opt to stay in state custody and fight their charges.
This is important because immigrants need finality to their case prior to a possible removal from this country. If the immigrant is removed from the U.S. prior to a disposition on their case, a warrant for their arrest will be issued in absentia. DACA recipients will lose their status if they are convicted of a DWI/DUI, assault family violence, possession of a controlled substance, and most other felonies or substantial misdemeanors. A United States Citizenship and Immigration Services (USCIS) officer makes the ultimate decision based upon certain criteria and personal discretion.
Daniel Hernandez: Everyone has due process and we do everything we can to protect them when they make life mistakes. However, yes, there are certain crimes that cause people to lose their DACA status.
Kathleen Campbell Walker: DACA recipients are required to undergo background checks, which include a fingerprint review. In addition, DACA applicants must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Yes, DACA status may be terminated regarding the commission of crimes.
Why don’t undocumented immigrants return to their countries of origin if they cannot obtain citizenship?
Edwardo Meza: Because of family roots here in the U.S., educational and career opportunities for their U.S. born children, earning potential here in the U.S. for parents, and the political stability of the U.S. compared to their home countries. Additionally, lots of immigrants own property and businesses.
Daniel Hernandez: Not a simple answer. How can someone who’s lived in this country since they were 2 years old be expected to “figure it out,” and return to the country from where their parents removed them? Again, that’s where working hard to find avenues for immigrants is a challenge we welcome.
Kathleen Campbell Walker: They often do not have ties to their home countries due to their entry to the U.S. as children. For example, they may not speak the language, have any family or support options, or the country they are from may pose a danger to them, if they are forced to return there. They consider themselves to be Americans, having spent most of their lives in the U.S. They have assimilated to the culture, learned English, gone to school, obtained jobs, and paid taxes, when applicable.
In some cases, they may have petitions filed by relatives or employers using the legal options, when available, and are waiting to be able to immigrate due to backlogs. Immigration law is as fluid as the lives of the applicants seeking its benefits. In some cases, the DACA recipient may now be married to a U.S. citizen and waiting for the immigrant visa process to be completed.
How do undocumented immigrants afford to attend universities? How is their tuition paid? Why do they receive in-state tuition if they are not citizens?
Daniel Hernandez: Most work. There is no federal funding for undocumented students and they can’t qualify for federal loans. When they attend, they’re either getting academic scholarships or paying for it themselves. Each state decides who gets in-state tuition. And let’s remember this, as an in-state tuition beneficiary, they’re paying the full amount! Most out of state students will likely receive some sort of financial-based assistance or at least can qualify for loans. The undocumented student does not receive those benefits.
Kathleen Campbell Walker: DACA recipients have been approved for deferred action and may live and seek work in the U.S. lawfully. Just like everyone else, they may have families or friends or used scholarships to pay for tuition. For example, Jeff Bezos and his wife recently donated $33 million to fund 1,000 scholarships for DACA. The Bill & Melinda Gates Foundation and the Chan Zuckerberg Initiative have also supported TheDream.US.
DACA recipients are ineligible for federal financial aid and are ineligible for state financial aid in 44 states. In more than 15 states, they are required to pay out-of-state or international tuition rates, according to TheDream.US.
More information about this topic from the National Association of Student Personnel Administrators can be found here.
What are the pros and cons of the plan President Trump proposed to grant amnesty to immigrants in exchange for funding of the border wall, ending chain migration and ending the lottery system?
Edwardo Meza: The main benefit, of course, would be a pathway to citizenship for all current DACA recipients and all other undocumented immigrants. The current DACA program does not offer a pathway to citizenship! It is simply a temporary status that must be renewed every two years, and the program can be terminated.
DACA recipients, as well as all other undocumented immigrants with a pathway to citizenship, will have the peace of mind to pursue their dreams and ambitions in this country without the threat of removal and they all can enjoy the benefit of obtaining their driver’s license. The cons would be excessive spending on a border wall that will have a minimum impact on illegal entry and drug trafficking. The dollars, in my opinion, would be better spent elsewhere, such as improving our infrastructure in this country.
Daniel Hernandez: I don’t think that question can be answered, yet. These are all proposals. Until something is in writing and signed …then wait for Congress to add whatever exceptions and changes to the bill, we’re still standing in the same position. But, it is clear that at least both the president and all of Congress want to assist those who qualify for DACA find a means to have a long-term solution for permanency.
Kathleen Campbell Walker: The term “amnesty” to me is inappropriate and invites a host of confusing impressions. Amnesty is normally defined as a pardon for those convicted of political or criminal offenses. Coming into the U.S. as a child (DACA recipients) should not be viewed as a criminal act by the minor.
Pros: We apply historic and accepted humanitarian principles in the U.S. to grant a path to citizenship for those who did not enter the U.S. knowingly in violation of law. If the Diversity Lottery program is ended and if the 50,000 immigrant visas allowed each year in this category are preserved for the other immigrant visa categories, this termination could help reduce the backlogs of cases for immigrants waiting in line for visas minimally.
Cons: We spend an obscene amount of money that the U.S. does not have on an security optic that is not supported even by former Secretaries of DHS as a necessary measure to obtain an acceptable level of operational control of the border.
The change in family-based immigration would potentially reduce legal immigration by 43% in 2019. Approximately, 82% of family-based immigration consists of spouses, minor children (under 21) and parents of U.S. citizens and the spouses and minor children of lawful permanent residents.
Legal immigration has not risen to the U.S. since 2001. The current flow of legal immigrants (approximately 1 million a year) is not high by U.S. historical standards. The 2015 legal immigration level of only 0.3 percent of the U.S. population is about 1/5 the level of 1907 as a percentage of the U.S. population. Back in 1907, the U.S. accepted approximately 1.3 million immigrants when America’s population was at only 87 million people – an annual flow of immigrants representing 1.5 percent of the U.S. population.
Ending the visa lottery, which only applies to 50,000 immigrants per year, does reduce options for immigrants from countries that are submitting fewer applications for immigration to the U.S. This result does reduce the diversity of those immigrating to the U.S., in particular from African nations.