The DREAM Act is the name assigned to various attempted, but failed, legislative efforts to help undocumented immigrants who entered the country as children square themselves with the law.
The DREAM Act has gone through several iterations since Utah's own Sen. Orrin Hatch first introduced it in 2001, including granting permanent residence status to young undocumented aliens who complete college or serve in the U.S. military.
We have supported the DREAM Act in all its variations. It has never made sense to us that decent young people who come to the United States as children, who grow up in the United States with a constitutional privilege of free primary and secondary education, should confront uncertain legal status and deportation simply because they reach the age where they can begin to contribute to society. They are not culpable for their undocumented status. If they demonstrate upstanding character and initiative, there is no reason they shouldn't be allowed to continue their productive lives right here where they have grown up.
Consequently, we generally support the Obama Administration's announcement last week, that it will use discretion in implementing the country's immigration laws, to provide some protection and continuity for undocumented aliens who came to the country as children. In a directive from Homeland Security Secretary Janet Napolitano, undocumented aliens under the age of 30 who entered the U.S. by age 16, have been in the country for at least five years, have a crystal clean record with the law, and have shown some initiative through schooling or military service will be eligible for what is called "deferred action" for two years.
Prosecutorial discretion has always been key to sensible justice. Although it can be abused, discretion allows reasonableness to allocate limited prosecutorial resources. This guidance on how to exercise discretion seems like a reasonable way to focus resources on violence, trafficking, fraud and other felonious activity.
But for all the hype around it, this directive is far less than it seems on both sides of the issue. A grant of deferred action does change the immigration status of an individual, although someone with the deferral may seek employment authorization. It is a discretionary status that cannot be reviewed by an administrative or federal court. And because it is discretionary, even with the new directive, it can be revoked at any time. Indeed, within the text of the directive itself, Homeland Security makes abundantly clear that the deferred action requests will be evaluated on a case-by-case basis with no assurance that they will actually be granted.
In many ways, Friday's announcement appears to be mostly a formalization of the kind of discretion already underway at DHS. And although the directive suggests that young undocumented immigrants may now apply for deferred action, we have to wonder out loud how quickly the department can process and evaluate the hundreds of thousands of potential applicants.
President Barack Obama has been deft at using administrative action to implement policies that curry favor with important electoral constituents, policies (he is quick to point out) that cannot get through Congress. Last week's deferred action initiative was clearly designed also to contrast with Mitt Romney's stated views on immigration policy.
We welcome the administration's clarification of policy and we welcome how it provides some modest albeit temporary hope to young undocumented immigrants. But until we have comprehensive immigration reform from Congress, this is mostly sound and fury. We'll wait to see what it signifies.