Editor's note: This article is the second in a two-part series.
Part I of this article addressed the process by which an adult undocumented individual can achieve citizenship under SB 744, the Senate comprehensive immigration bill. There was specific mention of "registered provisional immigrant" or RPI status — the core legalization vehicle that propels an immigrant toward a green card and citizenship. This portion of the article describes the other pathways to citizenship, and pinpoints other areas that would require legal representation if SB 744 or similar legislation is adopted.
Immigrants who arrived before they were 16 years old have a much shorter path to earned legalization and citizenship than the 13 years required for adult applicants. Known as "DREAMers," these applicants can apply for RPI status and, after five years, apply for lawful permanent status and simultaneously for citizenship. Those who have earned a high school or GED degree, and are enrolled in an institution of higher learning, or obtained a bachelor's degree or four years of military service, are eligible for this expedited procedure.
Unlike other adults, childhood arrivals may begin this process before "triggers" are in place. It is estimated there are 1.76 million unauthorized immigrants who arrived as children, according to "Relief From Deportation: Demographic Profile of the DREAMers Potentially Eligible Under the Deferred Action Policy" by Jeanne Batalova and Michelle Mittelstadt, published in August 2012 by the Migration Policy Institute.
The U.S. Citizenship and Immigration Services reports there are more than 500,000 "DREAMers" who have currently applied for deferred action for childhood arrivals (DACA), a stopgap form of administrative relief developed by the Obama administration announced June 15, 2012. DACA applicants are those who arrived before they were 16, resided in the United States since June 15, 2007, were 31 or younger as of June 15, 2012, and are in high school or studying for GED, or completed high school or a GED program. Such DACA applicants are able to work legally and are protected against deportation. In Pennsylvania, approximately 3,000 individuals have been approved for DACA. Under SB 744, DACA applicants may have an even faster road to lawful permanent residency than the five-year period. The total time from application to citizenship is five years or less, and the cost is estimated to be $1,750.
Farm workers are treated separately in SB 744. Workers who have been employed a minimum of 100 days or 575 work hours in agriculture in the two years prior to the enactment of the bill can apply to receive a blue card, which will enable the worker to remain and work legally in the United States. Applicants must pay a fine of $100, have paid taxes owed and not have been convicted of a felony or violent misdemeanor. The blue card provides legal status for eight years; after five years, if the farm worker continues to be employed in the agricultural section, he or she can apply for lawful permanent status, after paying a fine of $400. Five years later, the farm worker can apply for citizenship. The total time from application to citizenship is 10 to 13 years and the cost is estimated to be at least $2,360.
Access to Public Benefits
Immigrants in RPI status or those with blue cards, while able to work legally, are not eligible for any means-tested federal benefits, including nonemergency Medicaid, the Children's Health Insurance Program (CHIP), the Supplemental Nutrition Assistance Program (SNAP, or food stamps), Temporary Assistance for Needy Families (TANF, or cash assistance) and Supplemental Security Income (SSI). RPI immigrants are also not eligible for subsidies under the Affordable Care Act and will not be required to carry health insurance. This means that immigrants could be barred from means-tested benefits from five years for "DREAMers" to 15 years for adult beneficiaries. The relationship of immigration status to eligibility for public benefits is already complex; legal services will be needed to examine the scope of bars to benefits and to assist those who may be unjustly denied critical assistance.
Other Areas Requiring Legal Assistance
In addition to providing legal services to those who might be eligible for any new statuses created by comprehensive immigration reform legislation, two other areas will impact legal service delivery. The first involves individuals denied asylum because they filed their application after having lived in the United States for more than one year. Those who are denied asylum, but can show it is more likely than not that they will be persecuted if forced to return to their home country, are granted a status known as withholding of removal. Withholding of removal has many fewer benefits than a grant of asylum; it does not allow a person to apply for permanent residency or petition for their family members. SB 744 eliminates the one-year deadline, and permits those who were denied asylum solely on that basis to re-apply within two years of the bill's passage.
One study, "Rejecting Refugees: Homeland Security's Administration of the One-Year Bar to Asylum," published in the William and Mary Law Review in 2010, concluded that from 1997 to 2009, 18 percent of all affirmative asylum applicants were rejected simply because they missed the one-year statutory deadline, and estimated that 15,000 more asylum applications would have been granted since 1998. If passed in its current form, hundreds if not thousands of cases could be eligible for reapplication or would be eligible to apply for an initial asylum application.
There is currently no right to appointed counsel in immigration matters, including removal and detention cases. The Immigration and Nationality Act provides that immigrants have "the privilege of being represented" by counsel "at no expense to the government." The injustice of this is beginning to be recognized; in a class action suit, Franco-Gonzalez v. Holder, No. CV10-02211DGM (DTBx), U.S. C.D. Cal (April 23, 2013), brought by the American Civil Liberties Union and other public interest groups on behalf of disabled detained immigrants in a California federal court, U.S. District Judge Dolly Gee of the Central District of California mandated appointed counsel for mentally disabled detainees in Arizona, California and Washington. SB 744 begins to recognize the importance of legal representation by requiring the appointment of counsel for unaccompanied minor children and immigrants with mental disabilities. This is particularly critical to those nonprofits such as HIAS Pennsylvania, which struggle to provide free legal services to immigrant youth and other vulnerable populations.
If any major immigration legislation is passed, there will be tremendous demand for immigration and related legal services among low-income immigrants. Legislation geared toward tighter enforcement will require more focus on deportation defense, while a legalization program will generate a need for massive community education and legal assistance requiring collaboration among non-profit legal services providers, law schools, pro bono attorneys and immigrant-serving organizations.
Judith Bernstein-Baker serves as vice chair of the Pennsylvania and Philadelphia bar associations' immigration committees. She has been the executive director of HIAS (Hebrew Immigrant Aid Society) Pennsylvania for the past 16 years. HIAS PA provides legal, resettlement, citizenship and supportive services to immigrants and refugees from all backgrounds in order to ensure their fair treatment and full integration into American society.