II 112th CONGRESS 1st Session S. 952 IN THE SENATE OF THE UNITED STATES May 11, 2011 Mr. Durbin (for himself, Mr. Reid, Mr. Leahy, Mr. Schumer, Mr. Menendez, Mr. Levin, Mr. Lieberman, Mr. Akaka, Mr. Begich, Mr. Bennet, Mr. Bingaman, Mr. Blumenthal, Mrs. Boxer, Ms. Cantwell, Mr. Cardin, Mr. Carper, Mr. Coons, Mrs. Feinstein, Mr. Franken, Mrs. Gillibrand, Mr. Harkin, Mr. Kerry, Ms. Klobuchar, Mr. Kohl, Mr. Lautenberg, Mr. Merkley, Ms. Mikulski, Mrs. Murray, Mr. Nelson of Florida, Mr. Reed, Mr. Sanders, Mr. Udall of Colorado, and Mr. Whitehouse) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To authorize the cancellation of removal and adjustment of status of certain alien students who are long-term United States residents and who entered the United States as children and for other purposes.
1.
Short title; table of contents
(a)
Short title
This Act may be cited as the Development, Relief, and Education for Alien Minors Act of 2011 or the DREAM Act of 2011. (b)
Table of contents
The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Conditional permanent resident status for certain long-term residents who entered the United States as children. Sec. 4. Terms of conditional permanent resident status. Sec. 5. Removal of conditional basis of permanent resident status. Sec. 6. Regulations. Sec. 7. Penalties for false statements. Sec. 8. Confidentiality of information. Sec. 9. Higher education assistance.
2.
Definitions
In this Act: (1)
In general
Except as otherwise specifically provided, a term used in this Act that is used in the immigration laws shall have the meaning given such term in the immigration laws. (2)
Immigration laws
The term immigration laws has the meaning given such term in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)). (3)
Institution of higher education
The term institution of higher education has the meaning given such term in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002), except that the term does not include an institution of higher education outside the United States. (4)
Secretary
Except as otherwise specifically provided, the term Secretary means the Secretary of Homeland Security. (5)
Uniformed services
The term Uniformed Services has the meaning given the term uniformed services in section 101(a) of title 10, United States Code.
3.
Conditional permanent resident status for certain long-term residents who entered the United States as children
(a)
Conditional basis for status
Notwithstanding any other provision of law, an alien shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence under this section, to have obtained such status on a conditional basis subject to the provisions of this Act. (b)
Requirements
(1)
In general
Notwithstanding any other provision of law, the Secretary may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence on a conditional basis, an alien who is inadmissible or deportable from the United States or is in temporary protected status under section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a), if the alien demonstrates by a preponderance of the evidence that— (A)the alien has been continuously physically present in the United States since the date that is 5 years before the date of the enactment of this Act; (B)the alien was 15 years of age or younger on the date the alien initially entered the United States; (C)the alien has been a person of good moral character since the date the alien initially entered the United States; (D)subject to paragraph (2), the alien— (i)is not inadmissible under paragraph (2), (3), (6)(E), (6)(G), (8), (10)(A), (10)(C), or (10)(D) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)); (ii)has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; and (iii)has not been convicted of— (I)any offense under Federal or State law punishable by a maximum term of imprisonment of more than 1 year; or (II)3 or more offenses under Federal or State law, for which the alien was convicted on different dates for each of the 3 offenses and imprisoned for an aggregate of 90 days or more; (E)the alien— (i)has been admitted to an institution of higher education in the United States; or (ii)has earned a high school diploma or obtained a general education development certificate in the United States; and (F)the alien was 35 years of age or younger on the date of the enactment of this Act. (2)
Waiver
With respect to any benefit under this Act, the Secretary may waive the grounds of inadmissibility under paragraph (6)(E), (6)(G), or (10)(D) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) for humanitarian purposes or family unity or when it is otherwise in the public interest. (3)
Submission of biometric and biographic data
The Secretary may not grant permanent resident status on a conditional basis to an alien under this section unless the alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment. (4)
Background checks
(A)
Requirement for background checks
The Secretary shall utilize biometric, biographic, and other data that the Secretary determines is appropriate— (i)to conduct security and law enforcement background checks of an alien seeking permanent resident status on a conditional basis under this section; and (ii)to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for such status. (B)
Completion of background checks
The security and law enforcement background checks required by subparagraph (A) for an alien shall be completed, to the satisfaction of the Secretary, prior to the date the Secretary grants permanent resident status on a conditional basis to the alien. (5)
Medical examination
An alien applying for permanent resident status on a conditional basis under this section shall undergo a medical examination. The Secretary, with the concurrence of the Secretary of Health and Human Services, shall prescribe policies and procedures for the nature and timing of such examination. (6)
Military selective service
An alien applying for permanent resident status on a conditional basis under this section shall establish that the alien has registered under the Military Selective Service Act (50 U.S.C. App. 451 et seq.), if the alien is subject to such registration under that Act. (c)
Determination of continuous presence
(1)
Termination of continuous period
Any period of continuous physical presence in the United States of an alien who applies for permanent resident status on a conditional basis under this section shall not terminate when the alien is served a notice to appear under section 239(a) of the Immigration and Nationality Act (8 U.S.C. 1229(a)). (2)
Treatment of certain breaks in presence
(A)
In general
An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsection (b)(1)(A) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. (B)
Extensions for extenuating circumstances
The Secretary may extend the time periods described in subparagraph (A) for an alien if the alien demonstrates that the failure to timely return to the United States was due to extenuating circumstances beyond the alien's control. (d)
Application
(1)
In general
An alien seeking lawful permanent resident status on a conditional basis shall file an application for such status in such manner as the Secretary may require. (2)
Deadline for submission of application
An alien shall submit an application for relief under this section not later than the date that is 1 year after the later of— (A)the date the alien earned a high school diploma or obtained a general education development certificate in the United States; or (B)the effective date of the final regulations issued pursuant to section 6. (e)
Limitation on removal of certain aliens
(1)
In general
The Secretary or the Attorney General may not remove an alien who— (A)has a pending application for relief under this section; and (B)establishes prima facie eligibility for relief under this section. (2)
Certain aliens enrolled in primary or secondary school
(A)
Stay of removal
The Attorney General shall stay the removal proceedings of an alien who— (i)meets all the requirements of subparagraphs (A), (B), (C), (D), and (F) of subsection (b)(1); (ii)is at least 5 years of age; and (iii)is enrolled full-time in a primary or secondary school. (B)
Aliens not in removal proceedings
If an alien is not in removal proceedings, the Secretary shall not commence such proceedings with respect to the alien if the alien is described in clauses (i) through (iii) of subparagraph (A). (C)
Employment
An alien whose removal is stayed pursuant to subparagraph (A) or who may not be placed in removal proceedings pursuant to subparagraph (B) shall, upon application to the Secretary, be granted an employment authorization document. (D)
Lift of stay
The Secretary or Attorney General may lift the stay granted to an alien under subparagraph (A) if the alien— (i)is no longer enrolled in a primary or secondary school; or (ii)ceases to meet the requirements of such paragraph. (f)
Exemption from numerical limitations
Nothing in this section or in any other law may be construed to apply a numerical limitation on the number of aliens who may be eligible for adjustment of status under this Act.
4.
Terms of conditional permanent resident status
(a)
Period of status
Permanent resident status on a conditional basis granted under this Act is— (1)valid for a period of 6 years, unless such period is extended by the Secretary; and (2)subject to termination under subsection (c). (b)
Notice of requirements
(1)
At time of obtaining status
At the time an alien obtains permanent resident status on a conditional basis under this Act, the Secretary shall provide for notice to the alien regarding the provisions of this Act and the requirements to have the conditional basis of such status removed. (2)
Effect of failure to provide notice
The failure of the Secretary to provide a notice under this subsection— (A)shall not affect the enforcement of the provisions of this Act with respect to the alien; and (B)shall not give rise to any private right of action by the alien. (c)
Termination of status
(1)
In general
The Secretary shall terminate the conditional permanent resident status of an alien, if the Secretary determines that the alien— (A)ceases to meet the requirements of subparagraph (C) or (D) of section 3(b)(1); or (B)was discharged from the Uniformed Services and did not receive an honorable discharge. (d)
Return to previous immigration status
(1)
In general
Except as provided in paragraph (2), an alien whose permanent resident status on a conditional basis expires under subsection (a)(1) or is terminated under subsection (c) or whose application for such status is denied shall return to the immigration status the alien had immediately prior to receiving permanent resident status on a conditional basis or applying for such status, as appropriate. (2)
Special rule for temporary protected status
In the case of an alien whose permanent resident status on a conditional basis expires under subsection (a)(1) or is terminated under subsection (c) or whose application for such status is denied and who had temporary protected status immediately prior to receiving or applying for such status, as appropriate, the alien may not return to temporary protected status if— (A)the relevant designation under section 244(b) of the Immigration and Nationality Act (8 U.S.C. 1254a(b)) has been terminated; or (B)the Secretary determines that the reason for terminating the permanent resident status on a conditional basis renders the alien ineligible for temporary protected status. (e)
Information systems
The Secretary shall use the information systems of the Department of Homeland Security to maintain current information on the identity, address, and immigration status of aliens granted permanent resident status on a conditional basis under this Act.
5.
Removal of conditional basis of permanent resident status
(a)
Eligibility for removal of conditional basis
(1)
In general
Subject to paragraph (2), the Secretary may remove the conditional basis of an alien’s permanent resident status granted under this Act if the alien demonstrates by a preponderance of the evidence that— (A)the alien has been a person of good moral character during the entire period of conditional permanent resident status; (B)the alien is described in section 3(b)(1)(D); (C)the alien has not abandoned the alien’s residence in the United States; (D)the alien— (i)has acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the United States; or (ii)has served in the Uniformed Services for at least 2 years and, if discharged, received an honorable discharge; and (E)the alien has provided a list of each secondary school (as that term is defined in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)) that the alien attended in the United States. (2)
Hardship exception
(A)
In general
The Secretary may, in the Secretary’s discretion, remove the conditional basis of an alien’s permanent resident status if the alien— (i)satisfies the requirements of subparagraphs (A), (B), (C), and (E) of paragraph (1); (ii)demonstrates compelling circumstances for the inability to satisfy the requirements of subparagraph (D) of such paragraph; and (iii)demonstrates that the alien’s removal from the United States would result in extreme hardship to the alien or the alien’s spouse, parent, or child who is a citizen or a lawful permanent resident of the United States. (B)
Extension
Upon a showing of good cause, the Secretary may extend the period of permanent resident status on a conditional basis for an alien so that the alien may complete the requirements of subparagraph (D) of paragraph (1). (3)
Treatment of abandonment or residence
For purposes of paragraph (1)(C), an alien— (A)shall be presumed to have abandoned the alien's residence in the United States if the alien is absent from the United States for more than 365 days, in the aggregate, during the alien's period of conditional permanent resident status, unless the alien demonstrates to the satisfaction of the Secretary that the alien has not abandoned such residence; and (B)who is absent from the United States due to active service in the Uniformed Services has not abandoned the alien’s residence in the United States during the period of such service. (4)
Citizenship requirement
(A)
In general
Except as provided in subparagraph (B), the conditional basis of an alien's permanent resident status may not be removed unless the alien demonstrates that the alien satisfies the requirements of section 312(a) of the Immigration and Nationality Act (8 U.S.C. 1423(a)). (B)
Exception
Subparagraph (A) shall not apply to an alien who is unable because of a physical or developmental disability or mental impairment to meet the requirements of such subparagraph. (5)
Submission of biometric and biographic data
The Secretary may not remove the conditional basis of an alien's permanent resident status unless the alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric data because of a physical impairment. (6)
Background checks
(A)
Requirement for background checks
The Secretary shall utilize biometric, biographic, and other data that the Secretary determines appropriate— (i)to conduct security and law enforcement background checks of an alien applying for removal of the conditional basis of the alien's permanent resident status; and (ii)to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for removal of such conditional basis. (B)
Completion of background checks
The security and law enforcement background checks required by subparagraph (A) for an alien shall be completed, to the satisfaction of the Secretary, prior to the date the Secretary removes the conditional basis of the alien's permanent resident status. (b)
Application To remove conditional basis
(1)
In general
An alien seeking to have the conditional basis of the alien's lawful permanent resident status removed shall file an application for such removal in such manner as the Secretary may require. (2)
Deadline for submission of application
(A)
In general
An alien shall file an application under this subsection during the period beginning 6 months prior to and ending on the date that is later of— (i)6 years after the date the alien was initially granted conditional permanent resident status; or (ii)any other expiration date of the alien's conditional permanent resident status, as extended by the Secretary in accordance with this Act. (B)
Status during pendency
An alien shall be deemed to have permanent resident status on a conditional basis during the period that the alien’s application submitted under this subsection is pending. (3)
Adjudication of application
(A)
In general
The Secretary shall make a determination on each application filed by an alien under this subsection as to whether the alien meets the requirements for removal of the conditional basis of the alien's permanent resident status. (B)
Adjustment of status if favorable determination
If the Secretary determines that the alien meets such requirements, the Secretary shall notify the alien of such determination and remove the conditional basis of the alien’s permanent resident status, effective as of the date of such determination. (C)
Termination if adverse determination
If the Secretary determines that the alien does not meet such requirements, the Secretary shall notify the alien of such determination and, if the period of the alien's conditional permanent resident status under section 4(a)(1) has ended, terminate the conditional permanent resident status granted the alien under this Act as of the date of such determination. (c)
Treatment for purposes of naturalization
(1)
In general
For purposes of title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.), an alien granted permanent resident status on a conditional basis under this Act shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. (2)
Limitation on application for naturalization
An alien may not apply for naturalization during the period that the alien is in permanent resident status on a conditional basis under this Act.
6.
Regulations
(a)
Initial publication
Not later than 180 days after the date of the enactment of this Act, the Secretary shall publish regulations implementing this Act. Such regulations shall allow eligible individuals to apply affirmatively for the relief available under section 3 without being placed in removal proceedings. (b)
Interim regulations
Notwithstanding section 553 of title 5, United States Code, the regulations required by subsection (a) shall be effective, on an interim basis, immediately upon publication but may be subject to change and revision after public notice and opportunity for a period of public comment. (c)
Final regulations
Within a reasonable time after publication of the interim regulations in accordance with subsection (b), the Secretary shall publish final regulations implementing this Act. (d)
Paperwork Reduction Act
The requirements of chapter 35 of title 44, United States Code (commonly known as the Paperwork Reduction Act) shall not apply to any action to implement this Act.
7.
Penalties for false statements
Whoever files an application for any relief or benefit under this Act and willfully and knowingly falsifies, misrepresents, or conceals a material fact or makes any false or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false or fraudulent statement or entry, shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.
8.
Confidentiality of information
(a)
Prohibition
Except as provided in subsection (b), no officer or employee of the United States may— (1)use the information furnished by an individual pursuant to an application filed under this Act in removal proceedings against any person identified in the application; (2)make any publication whereby the information furnished by any particular individual pursuant to an application under this Act can be identified; or (3)permit anyone other than an officer, employee or authorized contractor of the United States Government or, in the case of an application filed under this Act with a designated entity, that designated entity, to examine such application filed under such sections. (b)
Required disclosure
The Attorney General or the Secretary shall provide the information furnished under this Act, and any other information derived from such furnished information, to— (1)a Federal, State, tribal, or local law enforcement agency, intelligence agency, national security agency, component of the Department of Homeland Security, court, or grand jury in connection with a criminal investigation or prosecution, a background check conducted pursuant to section 103 of the Brady Handgun Violence Protection Act (Public Law 103–159; 18 U.S.C. 922 note), or national security purposes, if such information is requested by such entity or consistent with an information sharing agreement or mechanism; or (2)an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime). (c)
Fraud in application process or criminal conduct
Notwithstanding any other provision of this section, information concerning whether an alien seeking relief under this Act has engaged in fraud in an application for such relief or at any time committed a crime may be used or released for immigration enforcement, law enforcement, or national security purposes. (d)
Penalty
Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.
9.
Higher education assistance
(a)
In general
Notwithstanding any provision of the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.), with respect to assistance provided under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), an alien who has permanent resident status on a conditional basis under this Act shall be eligible only for the following assistance under such title: (1)Student loans under parts D and E of such title IV (20 U.S.C. 1087a et seq. and 1087aa et seq.), subject to the requirements of such parts. (2)Federal work-study programs under part C of such title IV (42 U.S.C. 2751 et seq.), subject to the requirements of such part. (3)Services under such title IV (20 U.S.C. 1070 et seq.), subject to the requirements for such services. (b)
Restoration of State option To determine residency for purposes of higher education benefits
(1)
In general
Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed. (2)
Effective date
The repeal under paragraph (1) shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–546).