Senate Democrats

S. 2205, the Development, Relief, and Education for Alien Minors Act

Summary and Background

On October 18, 2007, Senator Durbin introduced S.2205, the Development, Relief, and Education for Alien Minors (DREAM) Act.  On October 22, Majority Leader Reid filed a cloture motion on the motion to proceed to consideration of the legislation.  The bill would provide a six-year path to permanent resident status for persons brought to the United State s as undocumented immigrants when they were children. 

The Senate is expected to hold a cloture vote on the motion to proceed on October 24.

Major Provisions

Section 3: Cancellation of Removal and Adjustment of Status of Certain Long-Term Residents Who Entered the United States as Children.  S.2205 would provide that an alien who is inadmissible or deportable from the United States may qualify for an initial conditional period of six years during which the alien may earn permanent resident status if he or she:

·        Has been continuously present in the United States for at least five years prior to enactment;

·        Was under 16 years of age at the time of entry; 

·        Has graduated from high school or obtained a GED in the United States, or has been admitted to an institution of higher education in the United States;

·        Can demonstrate good moral character;

·        Is not inadmissible or deportable under specifically enumerated grounds (e.g., criminal and national security grounds); and

·        Is 29 or younger on the date of enactment of this Act.

There would be a limited waiver applicable to grounds of inadmissibility and deportability under the Immigration and Nationality Act (INA) for humanitarian or family unity purposes, or if it is in the public interest. 

Persons previously ordered deported would not be eligible for adjustment of status, except for those who remained within the United States under color of law or who received the deportation order while under the age of sixteen.

For purposes of this section, continuous residence would be defined to be broken by a period out of the United States of more than 90 days in one visit, or 180 days in the aggregate, during the five year period.  These time periods would be extendable if the applicant shows exceptional circumstances no less compelling than serious illness to self, or death or serious illness to an immediate family member.

This legislation would also provide that: 1) persons who adjust status under its provisions will not count against the numerical limitations applicable to other categories of cancellation of removal; and 2) the DHS Secretary must publish proposed regulations within 180 days of enactment.

Section 4: Conditional Permanent Resident Status.  S.2205 would provide that the DHS Secretary could not remove an alien while he/she has a pending application for conditional status under the Act.  The Secretary could, however, terminate the conditional status of an alien who has become a public charge during the six-year period or who has received an other than honorable discharge from the uniformed services. 

The legislation would provide that the Secretary give notice to a newly adjusted conditional permanent resident regarding the requirements of becoming a permanent resident, i.e. removing his/her conditional status.  The requirements would be, that the alien petition for permanent status during the period beginning 180 days before and ending two years after the end of the six-year conditional period.  Further, within the six-year period, the alien must earn a degree from an institution of higher education or complete at least two years towards a bachelor’s or higher program, or to serve honorably in the military for at least two years. 

The applicant would also be required to meet the requirements of good moral character and maintain continuous residence in the U.S. (not absent more than an aggregate of 365 days during the six-year period).  The applicant would be able to obtain a waiver of these requirements but only at the discretion of the DHS Secretary or the Attorney General and only if the applicant demonstrates `exceptional and extremely unusual hardship.’

If the applicant were to successfully complete the enumerated requirements, the six-year conditional period would also satisfy the residency requirements for naturalization, subject to the limitations set forth in section 316 of the INA.

Section 5: Treatment of Certain Applicants.  S.2205 would provide that if at the time of enactment an alien has already satisfied all requirements under this Act (i.e., satisfied the higher education or military service requirements and all other requirements) then that alien would be able to adjust to permanent resident status without returning to school or serving in the military again. Those who would benefit from this section would be required to undergo the six-year conditional period and comply with all other requirements.

Section 6: Exclusive Jurisdiction.  S.2205 would provide that the DHS Secretary has jurisdiction to adjudicate affirmative applications for benefits, but the jurisdiction would transfer to the Attorney General when the applicant is in deportation, exclusion, or removal proceedings. 

Section 7: Stay of Removal of Certain Aliens Enrolled in Primary or Secondary School.  S.2205 would require the Attorney General to stay the removal proceedings of aliens who meet the requirements of this bill, are at least 12, and who are still enrolled full time in primary or secondary school. To the extent permissible under existing law, a child whose removal proceedings are stayed would be eligible to obtain work authorization.  This section would not preempt any existing federal or state labor laws, including laws governing minimum age to work.

Section 8: Penalties for False Statements in Application.  S.2205 would provide criminal penalties for falsifying an application for benefits under this Act, including fine, imprisonment or both.

Section 9: Confidentiality of Information.  S.2205 would provide that the government is not permitted to use information gathered in processing an application for permanent status under this Act to initiate removal proceedings against anyone identified in the application. 

However, the Attorney General or the DHS Secretary would be required to provide information to any law enforcement entity investigating any of the crimes or national security violations that render an immigrant inadmissible under the INA, when such information is requested by the law enforcement entity.  Information also would be provided to a coroner for the purpose of identifying a deceased individual. 

Section 10: Higher Education Assistance.  S.2205 would limit the types of federal financial assistance for higher education that the legislation’s beneficiaries can receive.  They would be eligible for non-cash services (such as tutoring, child care, etc.) under Title IV of the Higher Education Act of 1965 (HEA), student loans under Parts B and D of HEA, and work study programs under Part C of Title IV of HEA.  They would be ineligible for financial assistance under any other provision of HEA, including Pell Grants or other grants or scholarships. 

Section 11: GAO Report.  S.2205 would require the Government Accounting Office (GAO) to produce a study, seven years after enactment, concerning the number of aliens who apply for and receive benefits under this Act.

Legislative History

On October 18, 2007, Senator Durbin introduced S.2205, the Development, Relief, and Education for Alien Minors (DREAM) Act.  The bill has bipartisan support with three co-sponsors, Senators Hagel, Lugar, and Leahy.  Versions of this legislation have been offered early in the 110th Congress, as well as the 109th and 108th Congresses, both as a stand alone measure and as an amendment to broader legislation.  Most recently, the DREAM Act was included in S.1639, A bill to provide for comprehensive immigration reform and for other purposes. 

On October 22, Majority Leader Reid filed a cloture motion on the motion to proceed to consideration of the legislation.  The Senate is expected to hold a cloture vote on the motion to proceed on October 24.

Expected Amendments

At the time of this writing, no information on amendments has been provided, but a substitute amendment is expected that would incorporate minority and majority caucus-supported provisions. 

As it becomes available, information on amendments will be sent to the DPC-Immigration e-mail list.

Administration Position

At the time of this writing, the Administration has not issued a Statement of Administration Policy (SAP) for S.2205.  The President has, however, expressed support for broader comprehensive immigration reform measures, which includes the DREAM Act. 

NOTE: The major provisions section of this Legislative Bulletin was adapted from work completed by the National Immigration Law Center and the American Immigration Lawyers Association.