Expanding Legal Pathways for Dreamers
The DREAM Act of 2017 was created with the intent to provide a clear pathway to citizenship for DACA-eligible individuals residing in the United States. DACA, which stands for Deferred Action of Childhood Arrivals, is a currently suspended program that protects young adults from deportation if they were brought to the U.S. as children. However, one procedural barrier to obtaining legal residency remains: the requirement of passing a criminal background check. The screening of Dreamers, as beneficiaries of the DREAM Act are typically called, presents a quintessential case of legal irony. Here, a criminal past is singled out as a barrier to citizenship for a group of people whose illegal entry into the country is what qualified them for that pathway in the first place. This barrier in Dreamers’ pathway to citizenship has been responsible for “2,130 DACA recipients from fiscal year 2013 through 2017” losing their eligibility [1]. The legal pathway to citizenship for Dreamers should be revised to include a hardship waiver-equivalent for Dreamers with a potentially barring criminal record to explain the circumstances of their case.
The restrictions regarding criminal records rely on arbitrary standards, and the United States’ history of extreme and disproportionate sentencing further substantiates the need for reforming this process. The code of federal regulations that governs the criminal background requirements for Dreamers is 8 CFR 236.22(b)(6)). The USCIS states that a disqualifying misdemeanor counts as “an offense for which you were sentenced to time in custody of more than 90 days.”[2] This regulation creates an arbitrary and excessively barring protocol for DACA-eligible individuals, since a 90-day sentence is not inherently indicative of the nature of the crime one is convicted for.
The case of David Couslon represents the arbitrary nature of the 90-day sentence barrier. In 2002, Couslon, who was homeless at the time, was sentenced to life in prison after stealing $14.08 out of a residential garage. The passage of the California law AB 971 (Ch 12/94, Jones), or the “three strikes” law, criminalized Couslon’s act to an unjust degree [3]. This 1994 law mandated that if any felony were committed with two or more previous felony convictions on record, then the minimum sentence for the third strike had to be a life sentence with a 25 year minimum [4]. Occurrences like this show how easy it is for U.S. legislation to have such incongruent consequences in sentencing.
A closer look at the most common criminal convictions for Dreamers further emphasizes the danger in having such narrow restrictions without giving the opportunity for explanation. Since 2017, one of the most common criminal convictions for noncitizens in the U.S. has been categorized as “Burglary, Robbery, Larceny, Theft, Fraud” by U.S. Customs and Border Protection [5]. This fact becomes jarring when considering that the average sentence length for crimes like these, which are categorized under §2B1.1, is 24 months [6]. The disqualification of Dreamers from their pathway to citizenship is made substantially easier through these restrictive criminal background requirements. The disqualification of Dreamers’ DACA status, and the resultant barrier to citizenship, is perpetuated by irrational legal standards. The addition of an optional waiver would give Dreamers the opportunity to explain the context of their criminal record and any sentencing they received that may not have been proportionate to the crime they committed.
The implementation of hardship waivers for other pathways to lawful permanent residency sets a precedent that the DREAM Act should follow. Form I-602 is available for those seeking refugee or derivative refugee status in the United States, refugees already in the United States, or asylees in the United States applying for lawful permanent resident status. The form serves as a “a waiver of certain grounds of inadmissibility” for the applicable parties [7]. One of those grounds of inadmissibility is a felony conviction. In the humanitarian case of refugees and asylum seekers, it is possible to waive criminal backgrounds in the process of applying for lawful permanent resident status. The availability of the I-602 form shows that the United States has historically given migrants an opportunity to explain their inadmissibility. The second part of the form directs applicants to “provide a statement and full explanation of the acts, convictions, and/or medical conditions that you believe or you were told make you inadmissible.”[8] The inclusion of a hardship waiver for those with potentially barring criminal backgrounds is not an entirely new proposal; it is already being done for a different demographic of people. Thus, the same should be feasible in the context of Dreamers.
While the USCIS does have an extreme hardship waiver already, this process is insufficient, as it fails to look at Dreamers in isolation when adjudicating their waiver. The applicant’s hardship is instead based on the presumed effects that disqualification would have on other qualifying relatives already residing in the U.S. The USCIS outlines this in their policy: “the applicant meets the preponderance of the evidence standard if the evidence shows that it is more likely than not that a denial of admission would result in extreme hardship to one or more qualifying relatives.”[9] The hardship waiver already in place applies to not just criminal backgrounds, but also health conditions, cases of family unity, and fraud or willful misrepresentation [10]. But even though the existent considerations of extreme hardship are more widely encompassing than a criminal record waiver would be, the current waiver option does not take into account the Dreamer themselves when deciding to dismiss causes of inadmissibility. This element is crucial to the position of Dreamers, since they are only DACA eligible in the first place because they were brought to the United States by their parents without proper documentation. There are no “qualifying relatives” to be considered for Dreamers. Therefore, this general waiver still leaves room for misinterpretations to bar Dreamers from obtaining citizenship.
The DREAM Act provides DACA eligible individuals with a pathway to citizenship, but inadmissibility is often decided on the basis of a criminal record. The addition of a hardship waiver for Dreamers that includes language like that of the I-602 form would be the ideal approach to this situation. As much as the U.S. legal system tries to be the pinnacle of objectivity and justice, it does not always reach its goal. Those who fall victim to this fallacy deserve an opportunity to prove themselves in spite of marks on their record. Dreamers are just one case study, though. We must be critical of the way the U.S. uses criminal pasts to bar individuals from other privileges. Highlighting the inaccessibility of legal waivers in obtaining citizenship should inspire us to consider what other processes may be convoluted due to the U.S. justice system, and how they can be fixed.
Bibliography
Robertson, Lori. 2019. “The Data on DACA and Crime.” FactCheck.org. https://www.factcheck.org/2019/11/the-data-on-daca-and-crime/.
“Frequently Asked Questions.” 2023. USCIS. https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions.
Levin, Sam, and Alex Welsh. 2022. “Sentenced to life for stealing $14: 'I needed help, but was given jail.'” The Guardian.https://www.theguardian.com/us-news/2022/nov/02/sentenced-to-life-for-stealing-14-i-needed-help-but-was-given-jail.
Brown, Brian, and Greg Jolivette. 2005. “A Primer: Three Strikes The Impact After More Than a Decade.” Prison Policy Initiative. https://static.prisonpolicy.org/scans/3_strikes_102005.pdf.
“Criminal Noncitizen Statistics Fiscal Year 2023.” 2023. U.S. Customs and Border Protection. https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-noncitizen-statistics.
“Quick Facts on Theft, Property Destruction, and Fraud Offenses.” 2018. United States Sentencing Commission. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Theft_Property_Destruction_Fraud_FY18.pdf
“Application by Refugee for Waiver of Inadmissibility Grounds.” 2022. USCIS. https://www.uscis.gov/i-602.
U.S. Citizenship and Immigration Services, Application by Refugee for Waiver of Inadmissibility Grounds § (n.d.).
“Chapter 3 - Adjudicating Extreme Hardship Claims.” 2016. USCIS. https://www.uscis.gov/policy-manual/volume-9-part-b-chapter-3.
Ibid.