Real ID and Dreamers
In 2005 the REAL ID Act went into effect, requiring much stricter guidelines for states in issuing driver’s licenses. Included in this bill was the new requirement that a person applying for a driver’s license must also prove lawful immigration status. Prior to this, the majority of states only required proof of residence within a particular state and some form of photo identification; an undocumented person with a valid passport and electricity bill could therefore get a legal driver’s license in most states. REAL ID changed that.
The law also gave police an automatic indicator, especially when coupled with dark skin and broken English, that someone was possibly undocumented. Suddenly, thousands of people lacking a driver’s license were getting arrested for minor traffic violations; while they were in custody, the local police would call U.S. Immigration and Customs Enforcement (ICE) agents, who would put them into removal proceedings. Suddenly driving became an exercise in terror. Imagine every single time you got in a car, even as a passenger, you wondered if this would be the day you would not get to come home to your family.
Nowhere are the difficulties of being undocumented and lacking a driver’s license or ID more apparent than with the millions of young people colloquially known as DREAMers—young people who would have qualified under the DREAM Act (Development, Relief and Education for Alien Minors Act), had it ever passed. The DREAM Act was a bill that would have set up a path to citizenship for many undocumented young people who were brought to the United States without authorization or brought legally on visas but overstayed, and who have lived the majority of their lives in this country. The act has never passed as a stand-alone bill, although it has been voted on numerous times by both the House of Representatives and the Senate.
Many of these young people are now eligible under Deferred Action for Childhood Arrivals (DACA), the presidential program announced June 15, 2012. Under the program, certain young people who arrived in the United States before 2007 and prior to their 16th birthday can apply for a deferred status—technically an authorized period of stay—similar to the temporary protective status enjoyed by people from several countries that have suffered devastating natural disasters. This status allows the holder to apply for a work permit and, if granted, a Social Security Number, which in turn allows many to get a driver’s license as well. (For more on DACA, see “Deferred Action for Childhood Arrivals.”)
These DREAMers and DACA-eligible young people have numerous problems related to the lack of a driver’s license. For many, it wasn’t until they turned 16 and all their friends began getting licenses that they even realized they were different. These young people all have one thing in common: They were brought here by their parents or other family members at a very young age, many just a few months after their birth. They grew up like any American kid, going to American schools, watching American television programs, and listening to American music. It was this little plastic-laminated rite of passage that first set them apart from their U.S.-born classmates. Sagastume described it like this:
I guess I knew I was from somewhere different than my friends at school. I spent my first ten years in Honduras, and then I came to the United States. But I had no idea that I was in any way different than my friends until we turned 16. I went home and asked my mom if I could take the driver’s test. She told me that I couldn’t because I wasn’t in the United States legally. I had come in on a tourist visa and never left. I didn’t even know what that meant. It was then I found out that all of my family, except me, was “documented.” It was a hard concept to grasp. I started feeling different than my friends. I started really understanding what it meant to be undocumented.
Like many young people, Sagastume was embarrassed and scared about telling people he was undocumented because his family had cautioned him never to tell anyone about his status, that anyone could “turn him in” to immigration and he could be deported.
Because the REAL ID Act requires proof of valid immigration status not only for driver’s licenses but also for state IDs, another moment when many undocumented young people first grasp the difference between themselves and their American friends is when they purchase tickets for an R-rated movie. Sagastume described the first time he went to an R-rated movie with his friends. “I was 18 at the time and still in high school. All my friends and I went into the movie and the ticket guy asked for all of our IDs to get tickets for an R-rated movie. I didn’t have one. I showed him my school ID, but he wouldn’t let me in. I had to call my mom to come pick me up. I was really embarrassed.” His feeling of isolation and embarrassment continued to grow as all his family became more protective and wouldn’t let him do many things.
The issue of driving vexes many undocumented young people in other ways, too. Many of them come from a mixed-status family, meaning some in the family have papers and some do not. Many times, in an effort to protect the undocumented child, the parents and the documented children in the family are overprotective, sometimes not allowing the undocumented children to drive, participate in activities, or even spend too much time with their friends. This leads to a feeling of isolation and depression, often exacerbated as the young people approach graduation.
“This was really hard for me during this time, but I lost all hope around graduation time,” said Sagastume. “I was a really good student and I had received a full scholarship to a university in Kansas City [Missouri]. I was so excited to go to college. I was going to be the first person in my family to graduate from college. But then I got word from the university that I wasn’t going to be allowed to enroll because I could not provide a Social Security Number. I lost my scholarship and the chance to go to college. Now, while all my friends were constantly talking about college and what they were going to major in and all the great things they were going to do, all I could see was a life of under-the-table cash jobs and no future. I really lost hope when I lost that scholarship.”
Sagastume is not alone in this experience. Although many states allow undocumented young people to attend public colleges and universities, and some states even allow undocumented young people meeting certain requirements to pay in-state tuition, many states do not even allow undocumented kids to enroll. As Sagastume told me,
I couldn’t believe it. I had worked really hard in high school and gotten great grades and a scholarship to college, and I wasn’t going to be allowed to use it because of this number [a Social Security Number] and this identification [a driver’s license or state ID] that I didn’t have and couldn’t get. I was seeing nothing for myself for my future, and I was scared all the time. I had learned how to drive by this point but my family rarely allowed me to drive because they were all so afraid I would get stopped for speeding or having a tail light out, and then get turned over to immigration to be deported.
With no college prospects in his future and no money for out-of-state tuition in neighboring Kansas, Sagastume got a job.
My brother helped me find a job that didn’t ask too many questions, and I started working. Every day I went to that job it killed me. All I could think was that I should be in college right now. . . . Then one day in January my mom dropped me off at work, and after about an hour it was snowing so hard work was cancelled. I called my mom to come pick me back up, but she said no one could come get me for several hours. I was cold, and the business had closed, and I was mad that I had to wait for someone to come get me because I didn’t have this stupid plastic card and my mom wouldn’t let me drive. I was mad that I was standing in the snow, totally at the mercy of someone else for rides rather than at the university taking classes.
The job was about five miles from my house and I thought I would just start walking toward home. I was walking down the street in the snow and this red car full of kids, people my age, drove by and slowed down. One of them threw a cherry slushie out of the window at me (it hit me) and yelled, “Go back to your country, grasshopper.” Something in me broke then.
Many undocumented young people come to just such a breaking point. Ultimately, they grow tired of hiding and being scared all the time, accepting a life that is less than the one they feel they are meant to lead.
Standing there covered in cherry slushie, in the snow, with no car, no future, and no hope, feeling alone, like my documented family was smothering me and didn’t understand what I was going through, feeling like I was missing out on what my friends were getting to do and feeling like I had to settle for a life I didn’t want rather than the extraordinary life I dreamed because of something that I didn’t even chose to do . . . something finally snapped, and I decided that I was going to take my life back, even if it meant putting myself at risk.
Sagastume went home that night and told his mom he was going to try to go to school in Kansas. He told his family that he wanted to drive so he would never have to walk home in the snow covered in slushie thrown at him by racist kids who also hurled words that hurt even more. He got on the Internet, searched “undocumented students Kansas City,” and found the organization that eventually saved him. “I found this little group of students who had started meeting called KS/MODA, the Kansas/Missouri DREAM Alliance. They were all undocumented students about my age and were all in the same boat. I felt like I was home at last.” Sagastume’s experience turned him into a grassroots activist. Since then he has been actively involved in both local and national movements to push for comprehensive immigration reform and the DREAM Act and has helped turn KS/MODA into a powerful local organization focused not only on immigration reform but also on drop-out prevention, community education, and public pressure on ICE to halt deportations of DREAM Act–eligible people. “It really saved my life and made me feel like I belonged again,” Sagastume said.
Sagastume is now “DACA-mented”—he finally has some sort of legal immigration status through the DACA program. And despite his passion, activism, and outright bravery during his years without documentation, he said that finally getting that plastic card, his driver’s license, was like taking a huge weight off his shoulders. “Getting that license was incredible. I can finally drive without being worried that I am not going to come home to my family. I know my mom is relieved that I have DACA—she doesn’t have to worry about me as much when I am out driving.”
A Look To The Future
It is amazing what a plastic card can do. Sagastume’s story is just one from the estimated 11 million undocumented people in the United States. Eleven million is a huge number, and it is easy to dehumanize the debate over immigration policy, to forget that we are talking about the fates of human beings.
Legislative schemes designed to make conditions for the undocumented in the United States so unbearable that they “self-deport” are not realistic. The conditions in many of the “home” countries are so much crueler—whether because of poverty, war, or persecution—that the undocumented will never choose to “return” there. And many simply have no memory of these places and have not been there since they were small children. Ultimately, the undocumented will adapt to conditions under even the most draconian legislation because they cannot go back to the country of their birth; they will adapt because no matter how much they may not like the new laws, the United States is their home.
The story of the immigrant is the story of the United States. It is time to face up to the problems with our immigration system and fix it, rather than burying our head in the sand of empty rhetoric. We do not want to deport all 11 million of the undocumented people in the United States. We would miss out on people as extraordinary as Robert Sagastume and many others who, despite all the obstacles of an undocumented life, have made the United States a better, stronger country simply for being here.
Undocumented Clients: An Overview
Immigration, while complicated, is no longer something that non-immigration lawyers can ignore. Draconian consequences in the immigration arena can touch almost every aspect of the law. It is important always to know your client and know your client’s immigration status. As counsel working on a specific legal matter, you may not be able to help your client with an immigration problem, but it may very well be that you are the first trusted citizen this immigrant has met—and the first connection to a legal remedy. As such, please always ask about immigration so you can adequately advise or refer a client to the help that he or she needs.
Below are some common areas of concern:
There are a variety of consequences for receiving public benefits as an immigrant. By and large, undocumented people do not qualify for most public benefits. Emergency medical treatment is an exception. Similarly, emergency medical treatment does not disqualify a person from future benefits. Whether a means-tested benefit will impact future immigration benefits is a complex analysis. Prior to advising a person to try to get benefits, or if you find out your immigrant client is on public benefits, you should advise your client to seek the advice of a qualified immigration attorney.
Many attorneys will be surprised to learn that undocumented people can and often should file taxes. They can do so with a tax id number. If that undocumented person is married to a U.S. citizen and can regulate his or her status, there is a way to recover some of those taxes that, but for the immigration status of the taxpayer, would have qualified for a tax refund. Similarly, it is important for married couples of mixed status to file taxes correctly. This sometimes means not maximizing a refund. Filing incorrectly (for example, filing as single when the undocumented person is married) can lead to difficult questions in an immigration interview related to the validity of the marriage. The immigration consequences of filing errors extend to lawful permanent resident as well; tax problems can block such clients from naturalizing. However, if your client owes back taxes and is involved in a payment plan, such individuals usually will be fine for naturalization purposes.
Working Without Authorization
This is a huge problem for both the employee and the employer. If you are representing an employer, it is important to understand the serious monetary and sometimes criminal consequences for hiring unauthorized workers and for I-9 violations. If this area of the law is a part of your practice, you should take care to familiarize yourself with the proper way to fill out and maintain I-9s.
Similarly, for the immigrant worker, working without authorization can have serious consequences. In the case of someone here on an otherwise valid visa, if that visa does not include the ability to work and the right to apply for and obtain an Employment Authorization Document (EAD), working is a violation of the terms of the visa and puts the person at risk of losing the visa, being inadmissible in future entries, or even being removed from the United States.
College and Admission
Whether an undocumented person is allowed to enroll in post–high school institutions and at what cost is very much a state matter. These laws and policies vary wildly from state to state. If you have a client who is undocumented and wants to attend college, you should check the laws in your state or with the admissions department of the institution. It is important to note that undocumented people living within the United States are not international students for the purpose of college admissions or compliance with the Student and Exchange Visitor Program. Grade school, middle school, and high school are all open to undocumented kids, however. A school district cannot prevent a child from enrolling in school because of the child’s or the parents’ immigration status.
The Undocumented As Crime Victims
Many undocumented people are victims of crimes. Although this is tragic, as in many areas of the law, sometimes tragic events lead to something good. In the case of immigration, it can sometimes lead to a legal status. If your client discloses to you that he or she was a victim of a crime, it is important to refer them to an immigration attorney in your area who has experience in representing victims to evaluate their immigrations options.
Everyone who practices criminal defense has heard by now (one hopes) of the case Padilla v. Kentucky, 559 U.S. 356 (2010), which established the obligation of defense attorneys to properly advise the client of the immigration consequences of a criminal plea. To that end it is imperative, for the sake of both your client and your license, that you be familiar with several sections of immigration law related to criminal convictions. Specifically, you should have working knowledge of the federal definition of aggravated felonies (8 USC § 1101(a)(43)), the sections related to inadmissibility (being able to come into the United States; 8 USC § 1182), and the section related to removal (being kicked out; 8 USC § 1227). It is also important to acquaint yourself with an immigration lawyer who knows about criminal issues. Some clients need a specialized “expert” opinion related to the consequences of a plea; some need only a generalized advisory. But the law now requires competent advice on the immigration consequences of a criminal plea.