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October 2012, Volume 19, Number 4

DREAM, States, Elections

DREAM. President Obama ordered DHS to stop deporting unauthorized foreigners who arrived in the US before age 16, have lived illegally in the US at least five years and were under 31 on June 15, 2012, and are enrolled in school or have a high school diploma, or are honorably discharged veterans. Obama said that Deferred Action for Childhood Arrivals (DACA) would "lift the shadow of deportation from these young people."

The estimated 930,000 unauthorized foreigners who may qualify for DACA began paying $465 to register with DHS's Citizenship and Immigration Services Agency on August 15, 2012; they receive two-year renewable residence permits. Another 770,000 unauthorized youth may become eligible after, for instance, they have been in the US five years or obtain a high-school diploma. About 4.4 million of the 11.2 million unauthorized foreigners in the US are under 30.

Tens of thousands lined up for advice before completing and mailing forms to USCIS. Registered unauthorized youth can request permission to work legally by showing "economic necessity for employment." The information unauthorized youth provide in their applications will not be used for immigration enforcement, and employers who confirm the employment of DACA applicants will not be liable for employer sanctions. By some estimates, some 740,000 DACA-eligible youth are already employed illegally in the US.

USCIS received over 180,000 applications by October 12, 2012, and granted two-year DACA permits to 4,600 unauthorized foreigners. Those convicted of felony crimes or three misdemeanors are not eligible for deferred action.

There will be no in-person interviews under DACA unless USCIS suspects fraud, which may increase as applicants seek affidavits from employers, co-workers and others to document their time in the US. Some employers expressed caution about providing those applying for DACA status with proof that the individual in question worked for them, fearing DHS could later assert that they knowingly employed unauthorized workers. The USCIS agency administering DACA said that it would not share information from DACA applicants "unless there is evidence of egregious violations of criminal statutes or widespread abuses."

The new work permits serve as proof of legal residence and can be used to get Social Security numbers and driver's licenses in most states as well as professional certificates and financial aid for college. California allows unauthorized youth who receive employment authorization documents to get driver's licenses, but Arizona does not.

DACA provides fewer protections and benefits to young unauthorized foreigners than the Development, Relief and Education for Alien Minors (DREAM) Act, which was not approved by Congress. It would have allowed unauthorized foreigners brought to the US as children to become probationary immigrants immediately. If they completed two years of college or military service, they could become legal immigrants and eventually US citizens.

Reactions. Rep. Lamar Smith (R-TX), chair of the House Judiciary Committee, called DACA a "blatantly political, large-scale action" that "ignores the rule of law." Smith alleged that Obama's order would invite fraud on a massive scale, analogous to the fraud in IRCA's Special Agricultural Worker program, where up to two-thirds of those who received immigrant visas did not satisfy the work and other requirements.

However, Republican presidential candidate Mitt Romney in October 2012 said that, if elected, he would not reverse DACA. Romney said: "I'm not going to take something that they've purchased (two-year visas for $465). Before those visas have expired we will have the full immigration reform plan that I've proposed."

Ten Immigration and Customs Enforcement agents sued DHS in August 2012, asserting that they face disciplinary action for following the law and arresting unauthorized youth eligible for DACA. Some ICE agents also disagree with the Obama administration's summer 2011 policy of focusing enforcement efforts on convicted criminals and not detaining other unauthorized foreigners they encounter while searching for criminals.

Utah continues to negotiate with the federal government over parts of the so-called Utah Compact that would allow the state to convert unauthorized foreigners into legal guest workers. Proponents of the Compact say that DACA shows that Congressional action is not necessary to legalize some unauthorized foreigners in the US.

A "No papers, no fear" bus with unauthorized foreigners arrived in Charlotte, North Carolina on September 3, 2012 for the start of the Democratic National Convention. The riders urged Obama to try harder to persuade Republicans in Congress to approve immigration reform that includes legalization for unauthorized foreigners.

President Obama, in a September 2012 Florida speech hosted by Univision, said that the poor economy and the withdrawal of Republican support prevented the enactment of comprehensive immigration reform in 2009. Obama said: "my biggest failure so far is we haven't gotten comprehensive immigration reform done." Obama promised comprehensive immigration reform in a second term.

Republican Mitt Romney also promised comprehensive immigration reform that welcomes more skilled foreigners and fewer low-skilled immigrants. He complained that the US makes: "it hard for people who get educated here or elsewhere to make this [the US] their home. Unless, of course, you have no skill or experience, in which case you're welcome to cross the border and stay here for the rest of your life." Romney has suggested that, after all employers are required to check newly hired workers with E-Verify, some of the unauthorized now in the US would leave "on their own."

States. The National Conference of State Legislatures in August 2012 reported a sharp reduction in immigration-related bills introduced in state legislatures in the first half of 2012, fewer than 950, compared to almost 1,600 in 2011. A major reason for the reduced number of bills was uncertainty about the fate of Arizona's SB 1070's before the US Supreme Court.

The US Supreme Court in June 2012 upheld one of four provisions of SB 1070 that lower courts had blocked, the provision that allows police to verify the immigration status of everyone they encounter whom they reasonably suspect may be unauthorized. The Court warned that, if police implement this Section 2B provision in ways that lead to racial profiling and civil rights violations, it could be found unconstitutional as well. A federal judge in September 2012 refused to issue an injunction sought by civil rights groups to prevent the so-called "show me your papers" provision from taking effect.

Five states, Alabama with HB 56, Georgia with HB 87, Indiana with SB 590 and HB 1402, South Carolina with S 20, and Utah with HB 497, have laws similar to Arizona's SB 1070. Five other states, Kansas, Missouri, Mississippi, West Virginia and Tennessee, considered immigration control laws in 2012 but did not enact them, awaiting the Court's decision on Arizona's law.

The US Court of Appeals for the 11th Circuit applied the Supreme Court's SB 1070 decision to the Alabama and Georgia laws in August 2012, striking down provisions of Alabama's HB 56 that required K-12 schools to verify the legal status of pupils and their parents, made it unlawful for unauthorized foreigners to apply for jobs, and for businesses to deduct wages paid to unauthorized foreigners from their state taxes. The 11th Circuit voided the school verification requirement under the equal protection guarantees of the US constitution, and ruled that only the federal government can regulate the hiring of unauthorized workers.

The 11th Circuit emphasized that states may deny business licenses to employers of unauthorized workers and to unauthorized foreigners. In Georgia, where over 200 professions and 475,000 people are licensed by the state, the wait for state nursing, hair stylist and other licenses has lengthened as the secretary of state's office checks that applicants are legally in the US.

Maricopa County Sheriff Joe Arpaio went on trial in July 2012; he was charged in a federal class-action suit with racial profiling in enforcement activities. He said: "I am against racial profiling today, as in my 50 years in law enforcement." One purpose of the suit, filed by civil rights groups on behalf of Hispanics stopped by sheriff deputies, is to highlight the potential of state and local police to discriminate and build a case that the show-me-your-papers provisions of SB 1070 upheld by the US Supreme Court will produce the discrimination the court warned against. The federal government closed an abuse-of-power investigation against Arpaio in August 2012 without bringing charges.

Metropolitan State University of Denver allowed unauthorized foreigners living in Colorado to pay $7,200 a year in tuition for 2012-13, $3,000 higher than legal Colorado residents but $8,000 lower than out-of-state students. The split-tuition policy won praise from migrant advocates and criticism from restrictionists. Former Representative Tom Tancredo (R-CO), who sought the Republican presidential nomination in 2008, promised to sue Metropolitan State to end the tuition discount.

Election 2012. In November 2008, some 131 million votes were cast. Whites cast 100 million or 76 percent of these votes; Blacks, 16 million or 12 percent; Hispanics, 9.7 million or 7.5 percent; and Asians 3.3 million or 2.5 percent. According to Pew, whites voted 43-55 percent for Obama in 2008; Blacks 95-4 percent for Obama; Hispanics 67-31 percent for Obama; and Asians 62-35 percent for Obama.

Opinion polls in August 2012 found levels of Hispanic support for Obama similar to those of 2008, 63-28 percent.

Voter identification laws became a partisan issue in summer 2012. In 33 states, voters must show an ID to vote. In five states, Pennsylvania, Indiana, Kansas, Tennessee and Georgia, new laws required voters to show a specific kind of photo ID to vote. Most of the photo ID laws were enacted in states with Republican-controlled legislatures.

The US Department of Justice sued several states on behalf of minorities who, it said, were more likely to lack photo IDs, making these state laws discriminatory. Judges generally weakened or blocked photo ID laws, including the Pennsylvania law, which a judge ruled could be used only to request a photo ID. Pennsylvanians without a photo ID can still vote a normal rather than a provisional ballot in November 2012 elections.

Julia Preston, "Young Immigrants, in America Illegally, Line Up for Reprieve," New York Times, August 13, 2012. Fernanda Santos, "A Bus Ride to Show the Cracks in Immigration," Phoenix Journal, July 27, 2012.