Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of Dream Act Students

Article excerpt

Imagine there's no heaven

It's easy if you try. . . .

You, you may say

I'm a dreamer, but I'm not the only one

I hope some day you'll join us

And the world will be as one. . . .

- John Lennon, "Imagine"1

Introduction: The Aftermath of the DREAM Act Defeats

In Fall 2010, at the urging of Latino groups, Senator Harry Reid (D-NV) brought forward abili, the Development, Relief, and Education for Alien Minors (DREAM) Act,2 as the first building block toward future comprehensive immigration reform. As had been the case in 2007, when an earlier attempt had died in the Senate,3 the DREAM Act was tantalizingly close, and followed many public stories about undocumented college students in the media. These continued through the 2010 lameduck session, where once again the votes were not there. The "third time" may be the mythical "charm," but not in this subject matter Democratic backers of the legislation again fell short of the sixty Senate votes required to move the DREAM Act legislation forward in December 2010.4

While the federal legislation option was the best known and most politicized, the action at the state level has increased substantially, and a number of developments have occurred since the December 2010 Congressional failure.5 Subsequent activities at the state level have included Wisconsin (repealed resident tuition statute),6 Maryland (passed resident tuition statute; "frozen" while certified for state ballot measure);7 Rhode Island (state board responsible for residency tuition policy enacted mie allowing residency tuition in 2012);s Illinois (passed state statute allowing schools to award non-state-mnded scholarships to the undocumented);9 California (passed three state statutes: allowing schools to award non-state-funded scholarships, providing state financial assistance, and making special provisions for undocumented student leaders);10 Connecticut (passed resident tuition statute).11 While Maryland placed the issue on the 2012 statewide ballot, there was an effort in California to do the same before the provisions of the new laws were to take effect in 201 3; when the signatures were counted in early January 2012, there were not enough legitimate signatures to certify the measure to the November 2012 ballot.12 In 2012, immigrant groups in Maryland were litigating the ballot measure issue, arguing that the statute had not even been put into effect.13 Rhode Island was the first state to enact residency tuition for undocumented college students by administrative action rather than by a statute, as tuition policy is set administratively in the state.14

From 2010 through 2012, litigation occurred in California,15 Nebraska,16 and Texas17 - upholding state statutes against restrictionist efforts to eliminate the recent tuition provisions. In New Jersey18 and Florida,19 the states were sued due to policies that restricted even citizen residents from receiving residency or financial aid if their parents were out of status. Litigation also was filed in Maryland20 and New York21 on associated residency tuition issues. In addition to these expansive accomodationist initiatives, designed to incorporate undocumented college students into their communities, there have been states that have done the opposite: enacting statutes or policies to prevent the undocumented from receiving resident tuition (redundant, as Sections 1621 and 1623 require affirmative passage of state laws to accord the status)22 (see Table One), and a small number of states ban them outright, including Alabama,23 Indiana,24 and Ohio,25 which did so in 20 1 1 (for these, see Table Two). The 2011 Alabama bill would have restricted even refugees from enrolling, and was enjoined by the federal district judge.26 Additional Alabama provisions affecting K-1 2 students and requiring the state to "inventory" such children were not enjoined by the trial court, but by the Eleventh Circuit.27 Existing New Jersey policy denied state financial aid to a student who was a U. …