January 24, 2018 10:40AM

House GOP DACA Bill Would Criminalize Dreamer Poverty

I have written before about how the House GOP DACA bill would legalize some young immigrant Dreamers, but would criminalize them if they failed to maintain an income at least 125 percent of the poverty line. Center for Immigration Studies (CIS) has written a blog post claiming that the bill, the Securing America’s Future Act (H.R. 4760), does not do this. CIS is wrong. First, on pages 390–396, we see the following:

(b) Eligibility Requirements.— (1) IN GENERAL.—An alien is eligible for contingent nonimmigrant status if the alien establishes by clear and convincing evidence that the alien meets the requirements set forth in this subsection. …

(4) GROUNDS FOR INELIGIBILITY.—An alien is ineligible for contingent nonimmigrant status if the Secretary determines that the alien— … (L) if over the age of 18, has failed to demonstrate that he or she is able to maintain himself or herself at an annual income that is not less than 125 percent of the Federal poverty level throughout the period of admission as a contingent nonimmigrant …

CIS responds that this “does not require that an alien maintain him‐ or herself “at an annual income that is not less than 125 percent of the Federal poverty level throughout the period of admission;” rather, it conditions a grant of nonimmigrant status to a showing of an ability to do so at the time of application” (My emphasis). Nothing in the language of subsection (b) actually limits the income “demonstration” to the time of the application. Are all the other requirements also limited only to the time of the application? Can the Dreamers commit felonies and keep their status? Obviously not. But in any case, CIS’s argument ignores page 409, which clearly states that all requirements in subsection (b) are conditions of the status:

The Secretary shall revoke the status of a contingent nonimmigrant at any time if the alien— (A) no longer meets the eligibility requirements set forth in subsection (b).

But revocation of status is not the only penalty for violating the conditions of the status under the bill. On pages 171–172, we see that it creates a new federal criminal offense:

(1) ILLEGAL ENTRY OR PRESENCE.—An alien shall be subject to the penalties set forth in paragraph (2) if the alien—…(D) knowingly violates the terms or conditions of the alien’s admission or parole into the United States and has remained in violation for an aggregate period of 90 days or more

(2) CRIMINAL PENALTIES.—Any alien who violates any provision under paragraph (1)— (A) shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both; (B) shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years (or not more than 6 months in the case of a second or subsequent violation of paragraph (1)(E)), or both.

Any foreigner who violates “the terms or conditions” of an immigrant’s status will have committed a criminal offense if they did so for more than 90 days. For some reason, CIS never quotes this language. Instead, its post discusses a variety of irrelevant current regulations. The plain fact is that the House GOP would have Dreamers criminally prosecuted and sentenced to up to six months in federal prison if they drop below an annual income of 125 percent of the poverty line for 90 days.

CIS also tries to portray this requirement as no more onerous than the public charge affidavit requirement that all sponsors of legal immigrants already must sign, pledging to maintain the immigrant at an income of at least 125 percent of the poverty line. In that scenario, however, it is the sponsor who is required to demonstrate income, and the legal immigrant can enforce the affidavit against the citizen. This comparison also cuts against the notion that the income requirement is only at the time of the application, since the income requirement for the affidavit is not limited to the time of the application.

In any case, the immigrant is in absolutely no danger of deportation as a result of the citizen’s failure to sufficiently support them. Moreover, the affidavit requirement for the sponsor expires. By contrast, the House GOP bill’s requirement has no termination date. It would continue to require Dreamers to work for the rest of their lives if necessary to avoid status revocation, deportation, and the criminal penalties under this bill. As I have said in my explanation of the legalization provisions on Twitter, this bill treats Dreamers as criminals on parole, not as the Americans that the vast majority of the public considers them to be. 

This treatment makes perfect sense when you consider that the bill also makes it a criminal offense (p. 171–72) to exist in the United States for 90 days without legal status. The House GOP is so determined to see these immigrants as not just illegal, but as criminals that they have decided to try to make their view reality. Given this perspective, it seems perfectly logical to them to treat Dreamers as criminals on parole, not equal members of society.