[Congressional Record Volume 155, Number 52 (Thursday, March 26, 2009)]
[Senate]
[Pages S3930-S3932]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Lugar, Mr. Reid, Mr. Martinez, 
        Mr. Leahy, Mr. Lieberman, Mr. Kennedy, and Mr. Feingold):
  S. 729. A bill to amend the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 to permit States to determine State 
residency for higher education purposes and 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; to the Committee on 
the Judiciary.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 729

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Development, Relief, and 
     Education for Alien Minors Act of 2009'' or the ``DREAM Act 
     of 2009''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Institution of higher education.--The term 
     ``institution of higher education'' has the meaning given 
     that term in section 101 of the Higher Education Act of 1965 
     (20 U.S.C. 1001).
       (2) Uniformed services.--The term ``uniformed services'' 
     has the meaning given that term in section 101(a) of title 
     10, United States Code.

     SEC. 3. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY 
                   FOR PURPOSES OF HIGHER EDUCATION BENEFITS.

       (a) In General.--Section 505 of the Illegal Immigration 
     Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 
     1623) is repealed.
       (b) Effective Date.--The repeal under subsection (a) 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).

     SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF 
                   CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE 
                   UNITED STATES AS CHILDREN.

       (a) Special Rule for Certain Long-Term Residents Who 
     Entered the United States as Children.--
       (1) In general.--Notwithstanding any other provision of law 
     and except as otherwise provided in this Act, the Secretary 
     of Homeland Security may cancel removal of, and adjust to the 
     status of an alien lawfully admitted for permanent residence, 
     subject to the conditional basis described in section 5, an 
     alien who is inadmissible or deportable from the United 
     States, if the alien demonstrates that--
       (A) the alien has been physically present in the United 
     States for a continuous period of not less than 5 years 
     immediately preceding the date of enactment of this Act, and 
     had not yet reached the age of 16 years at the time of 
     initial entry;
       (B) the alien has been a person of good moral character 
     since the time of application;
       (C) the alien--
       (i) is not inadmissible under paragraph (2), (3), (6)(E), 
     or (10)(C) of section 212(a) of the Immigration and 
     Nationality Act (8 U.S.C. 1182(a)); and
       (ii) is not deportable under paragraph (1)(E), (2), or (4) 
     of section 237(a) of the Immigration and Nationality Act (8 
     U.S.C. 1227(a));
       (D) the alien, at the time of application, has been 
     admitted to an institution of higher education in the United 
     States, or has earned a high school diploma or obtained a 
     general education development certificate in the United 
     States;
       (E) the alien has never been under a final administrative 
     or judicial order of exclusion, deportation, or removal, 
     unless the alien--
       (i) has remained in the United States under color of law 
     after such order was issued; or
       (ii) received the order before attaining the age of 16 
     years; and
       (F) the alien had not yet reached the age of 35 years on 
     the date of the enactment of this Act.
       (2) Waiver.--Notwithstanding paragraph (1), the Secretary 
     of Homeland Security may waive the ground of ineligibility 
     under section 212(a)(6)(E) of the Immigration and Nationality 
     Act and the ground of deportability under paragraph (1)(E) of 
     section 237(a) of that Act for humanitarian purposes or 
     family unity or when it is otherwise in the public interest.

[[Page S3931]]

       (3) Procedures.--The Secretary of Homeland Security shall 
     provide a procedure by regulation allowing eligible 
     individuals to apply affirmatively for the relief available 
     under this subsection without being placed in removal 
     proceedings.
       (b) Termination of Continuous Period.--For purposes of this 
     section, any period of continuous residence or continuous 
     physical presence in the United States of an alien who 
     applies for cancellation of removal 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)).
       (c) Treatment of Certain Breaks in Presence.--
       (1) In general.--An alien shall be considered to have 
     failed to maintain continuous physical presence in the United 
     States under subsection (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.
       (2) Extensions for exceptional circumstances.--The 
     Secretary of Homeland Security may extend the time periods 
     described in paragraph (1) if the alien demonstrates that the 
     failure to timely return to the United States was due to 
     exceptional circumstances. The exceptional circumstances 
     determined sufficient to justify an extension should be no 
     less compelling than serious illness of the alien, or death 
     or serious illness of a parent, grandparent, sibling, or 
     child.
       (d) Exemption From Numerical Limitations.--Nothing in this 
     section may be construed to apply a numerical limitation on 
     the number of aliens who may be eligible for cancellation of 
     removal or adjustment of status under this section.
       (e) Regulations.--
       (1) Proposed regulations.--Not later than 180 days after 
     the date of enactment of this Act, the Secretary of Homeland 
     Security shall publish proposed regulations implementing this 
     section. Such regulations shall be effective immediately on 
     an interim basis, but are subject to change and revision 
     after public notice and opportunity for a period for public 
     comment.
       (2) Interim, final regulations.--Within a reasonable time 
     after publication of the interim regulations in accordance 
     with paragraph (1), the Secretary of Homeland Security shall 
     publish final regulations implementing this section.
       (f) Removal of Alien.--The Secretary of Homeland Security 
     may not remove any alien who has a pending application for 
     conditional status under this Act.

     SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.

       (a) In General.--
       (1) Conditional basis for status.--Notwithstanding any 
     other provision of law, and except as provided in section 6, 
     an alien whose status has been adjusted under section 4 to 
     that of an alien lawfully admitted for permanent residence 
     shall be considered to have obtained such status on a 
     conditional basis subject to the provisions of this section. 
     Such conditional permanent resident status shall be valid for 
     a period of 6 years, subject to termination under subsection 
     (b).
       (2) Notice of requirements.--
       (A) At time of obtaining permanent residence.--At the time 
     an alien obtains permanent resident status on a conditional 
     basis under paragraph (1), the Secretary of Homeland Security 
     shall provide for notice to the alien regarding the 
     provisions of this section and the requirements of subsection 
     (c) to have the conditional basis of such status removed.
       (B) Effect of failure to provide notice.--The failure of 
     the Secretary of Homeland Security to provide a notice under 
     this paragraph--
       (i) shall not affect the enforcement of the provisions of 
     this Act with respect to the alien; and
       (ii) shall not give rise to any private right of action by 
     the alien.
       (b) Termination of Status.--
       (1) In general.--The Secretary of Homeland Security shall 
     terminate the conditional permanent resident status of any 
     alien who obtained such status under this Act, if the 
     Secretary determines that the alien--
       (A) ceases to meet the requirements of subparagraph (B) or 
     (C) of section 4(a)(1);
       (B) has become a public charge; or
       (C) has received a dishonorable or other than honorable 
     discharge from the uniformed services.
       (2) Return to previous immigration status.--Any alien whose 
     conditional permanent resident status is terminated under 
     paragraph (1) shall return to the immigration status the 
     alien had immediately prior to receiving conditional 
     permanent resident status under this Act.
       (c) Requirements of Timely Petition for Removal of 
     Condition.--
       (1) In general.--In order for the conditional basis of 
     permanent resident status obtained by an alien under 
     subsection (a) to be removed, the alien must file with the 
     Secretary of Homeland Security, in accordance with paragraph 
     (3), a petition which requests the removal of such 
     conditional basis and which provides, under penalty of 
     perjury, the facts and information so that the Secretary may 
     make the determination described in paragraph (2)(A).
       (2) Adjudication of petition to remove condition.--
       (A) In general.--If a petition is filed in accordance with 
     paragraph (1) for an alien, the Secretary of Homeland 
     Security shall make a determination as to whether the alien 
     meets the requirements set out in subparagraphs (A) through 
     (E) of subsection (d)(1).
       (B) Removal of conditional basis if favorable 
     determination.--If the Secretary determines that the alien 
     meets such requirements, the Secretary shall notify the alien 
     of such determination and immediately remove the conditional 
     basis of the status of the alien.
       (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 terminate the conditional permanent resident status of 
     the alien as of the date of the determination.
       (3) Time to file petition.--An alien may petition to remove 
     the conditional basis to lawful resident status during the 
     period beginning 180 days before and ending 2 years after 
     either the date that is 6 years after the date of the 
     granting of conditional permanent resident status or any 
     other expiration date of the conditional permanent resident 
     status as extended by the Secretary of Homeland Security in 
     accordance with this Act. The alien shall be deemed in 
     conditional permanent resident status in the United States 
     during the period in which the petition is pending.
       (d) Details of Petition.--
       (1) Contents of petition.--Each petition for an alien under 
     subsection (c)(1) shall contain information to permit the 
     Secretary of Homeland Security to determine whether each of 
     the following requirements is met:
       (A) The alien has demonstrated good moral character during 
     the entire period the alien has been a conditional permanent 
     resident.
       (B) The alien is in compliance with section 4(a)(1)(C).
       (C) The alien has not abandoned the alien's residence in 
     the United States. The Secretary shall presume that the alien 
     has abandoned such residence if the alien is absent from the 
     United States for more than 365 days, in the aggregate, 
     during the period of conditional residence, unless the alien 
     demonstrates that alien has not abandoned the alien's 
     residence. An alien 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.
       (D) The alien has completed at least 1 of the following:
       (i) The alien 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.
       (ii) The alien has served in the uniformed services for at 
     least 2 years and, if discharged, has received an honorable 
     discharge.
       (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 of Homeland Security may, in 
     the Secretary's discretion, remove the conditional status of 
     an alien if the alien--
       (i) satisfies the requirements of subparagraphs (A), (B), 
     and (C) of paragraph (1);
       (ii) demonstrates compelling circumstances for the 
     inability to complete the requirements described in paragraph 
     (1)(D); and
       (iii) demonstrates that the alien's removal from the United 
     States would result in exceptional and extremely unusual 
     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 
     of Homeland Security may extend the period of conditional 
     resident status for the purpose of completing the 
     requirements described in paragraph (1)(D).
       (e) Treatment of Period for Purposes of Naturalization.--
     For purposes of title III of the Immigration and Nationality 
     Act (8 U.S.C. 1401 et seq.), in the case of an alien who is 
     in the United States as a lawful permanent resident on a 
     conditional basis under this section, the alien 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. However, the conditional basis must be 
     removed before the alien may apply for naturalization.

     SEC. 6. RETROACTIVE BENEFITS UNDER THIS ACT.

       If, on the date of enactment of this Act, an alien has 
     satisfied all the requirements of subparagraphs (A) through 
     (E) of section 4(a)(1) and section 5(d)(1)(D), the Secretary 
     of Homeland Security may adjust the status of the alien to 
     that of a conditional resident in accordance with section 4. 
     The alien may petition for removal of such condition at the 
     end of the conditional residence period in accordance with 
     section 5(c) if the alien has met the requirements of 
     subparagraphs (A), (B), and (C) of section 5(d)(1) during the 
     entire period of conditional residence.

     SEC. 7. EXCLUSIVE JURISDICTION.

       (a) In General.--The Secretary of Homeland Security shall 
     have exclusive jurisdiction to determine eligibility for 
     relief under this Act, except where the alien has been placed 
     into deportation, exclusion, or removal proceedings either 
     prior to or after filing an application for relief under this 
     Act, in which case the Attorney General shall have exclusive 
     jurisdiction and shall assume

[[Page S3932]]

     all the powers and duties of the Secretary until proceedings 
     are terminated, or if a final order of deportation, 
     exclusion, or removal is entered the Secretary shall resume 
     all powers and duties delegated to the Secretary under this 
     Act.
       (b) Stay of Removal of Certain Aliens Enrolled in Primary 
     or Secondary School.--The Attorney General shall stay the 
     removal proceedings of any alien who--
       (1) meets all the requirements of subparagraphs (A), (B), 
     (C), and (E) of section 4(a)(1);
       (2) is at least 12 years of age; and
       (3) is enrolled full time in a primary or secondary school.
       (c) Employment.--An alien whose removal is stayed pursuant 
     to subsection (b) may be engaged in employment in the United 
     States consistent with the Fair Labor Standards Act (29 
     U.S.C. 201 et seq.) and State and local laws governing 
     minimum age for employment.
       (d) Lift of Stay.--The Attorney General shall lift the stay 
     granted pursuant to subsection (b) if the alien--
       (1) is no longer enrolled in a primary or secondary school; 
     or
       (2) ceases to meet the requirements of subsection (b)(1).

     SEC. 8. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.

       Whoever files an application for relief 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, or imprisoned not more than 5 years, 
     or both.

     SEC. 9. 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 the applicant pursuant 
     to an application filed under this Act to initiate removal 
     proceedings against any persons 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 or employee of the 
     United States Government or, in the case of applications 
     filed under this Act with a designated entity, that 
     designated entity, to examine applications filed under this 
     Act.
       (b) Required Disclosure.--The Attorney General or the 
     Secretary of Homeland Security shall provide the information 
     furnished under this section, and any other information 
     derived from such furnished information, to--
       (1) a duly recognized law enforcement entity in connection 
     with an investigation or prosecution of an offense described 
     in paragraph (2) or (3) of section 212(a) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(a)), when such information 
     is requested in writing by such entity; 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) Penalty.--Whoever knowingly uses, publishes, or permits 
     information to be examined in violation of this section shall 
     be fined not more than $10,000.

     SEC. 10. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON 
                   FEES.

       Regulations promulgated under this Act shall provide that 
     applications under this Act will be considered on an 
     expedited basis and without a requirement for the payment by 
     the applicant of any additional fee for such expedited 
     processing.

     SEC. 11. HIGHER EDUCATION ASSISTANCE.

       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 adjusts status to that 
     of a lawful permanent resident under this Act shall be 
     eligible only for the following assistance under such title:
       (1) Student loans under parts B, D, and E of such title IV 
     (20 U.S.C. 1071 et seq., 1087a et seq., 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.

     SEC. 12. GAO REPORT.

       Not later than seven years after the date of enactment of 
     this Act, the Comptroller General of the United States shall 
     submit a report to the Committee on the Judiciary of the 
     Senate and the Committee on the Judiciary of the House of 
     Representatives setting forth--
       (1) the number of aliens who were eligible for cancellation 
     of removal and adjustment of status under section 4(a);
       (2) the number of aliens who applied for adjustment of 
     status under section 4(a);
       (3) the number of aliens who were granted adjustment of 
     status under section 4(a); and
       (4) the number of aliens whose conditional permanent 
     resident status was removed under section 5.

  Mr. LEAHY. Mr. President, I am pleased to join Senator Durbin once 
again to introduce the Development, Relief, and Education for Alien 
Minors Act, DREAM. This legislation has the potential to change the 
lives of many young people in an extraordinary and positive way and is 
an investment in America's future.
  The Senate has attempted several times to pass the DREAM Act, but the 
bitter politics of immigration have stalled our best efforts in the 
past. I appreciate Senator Durbin's persistence, and I share his 
commitment to the young people whose lives this bill would profoundly 
improve. Those who came to the U.S. as minors under the care of their 
parents are not guilty of their parents' transgressions. For many, the 
U.S. is the only home they know. We will further the Federal policy 
that supports educational opportunity and military service if we 
exercise the forbearance to defer rigid application of our laws upon 
those who have the potential to be citizens that will move our country 
forward. We all recognize the value of higher education and service to 
our country. To serve these Federal policy interests by giving legal 
stability and opportunity to young people caught in the limbo of our 
laws through no fault of their own is the right thing to do.
  As Congress and the administration work through the immediate 
challenges that lie ahead, and begin to restore the faith of Americans 
in our economy and our government, I hope Congress will not shy away 
from other important issues such as immigration reform. When our 
Federal Government confronts the issue of immigration, I hope we will 
see not only the opportunity to correct what is wrong, but also to 
improve and build upon what is good and just about the traditions of 
welcoming and refuge that define our immigration system. The promise 
this bill holds for so many young people will reinforce the spirit that 
underlies the history of American immigration and the diversity that 
has moved us so far.
  I thank Senator Durbin and hope all Senators will join us in support 
of this legislation.
                                 ______