In 1990, the Republicans sought to make right the exclusion of young children from the amnesty that had been passed in 1986 by President Reagan’s first round of the Life Act.  Headed by Republican Senator Orin Hatch, from Utah, the idea of the Dream Act was born.  Even then, Republicans were looking at the Long Term importance of the Latinos in the Party.  The “idea” back then focused on education and internships for the young who were virtually excluded in the first round of “amnesty.”  This version was to help stimulate the economy and it did.  Unemployment was at a low at 7.0 and then dropping to 5.3.  As a result, the Life Act passed with a large majority.  Coupled with tax cuts at the time, the economy boomed.  The Republicans at that time were not taken seriously on the idea of investing in the youth, though.

In 2000 and 2001, the Life Act came to life under the law of the INA, under what is called 245(i) in our profession.  Again the idea of “amnesty” came to the public via the low unemployment rate at 4.0 where it remained for the next few years.   The idea was to allow foreign investment to come help stimulate the economy as U.S. jobs were not a threat.  And so this “amnesty” was again considered and passed overwhelmingly.  Again, the U.S. economy soared.  And again, Senator Orin Hatch led the way for A Dream Act, but was not taken seriously;  hence, the investment in the Latino youth stifled.  Not even the liberal administration came to the rescue.

Twenty years later, those youth in 1990 are now about 30 years of age.  Those who have been able to adjust and become Legal Permanent Residents have done so. How did those youth  become “legal?”  Many of these youths are still unmarried so that they could adjust under their parent’s application.  Others have married U.S. Citizens and have adjusted their status.  Yet many of them are still waiting for their Visas to become available.  They have followed the law but are unable to obtain a work permit or attend school.  They are the undocumented that many call “illegals.”  They are not able to adjust because although their applications are approved, they have turned 21 years of age (in immigration law this is a perilous age for a child to turn) and so they must now wait and wait for their visa to become available.  They have followed the law but are in limbo.

Those who have managed to survive this obstacle course, are now U.S. Citizens and are able to vote.  These are the citizens created by President Reagan’s first round of amnesty.  Those who were eligible for the 2001 Life Act amnesty are barely coming through the ranks to become Legal Permanent Residents.  What does this mean?  None of these so called Amnesty accounted for the many youth that the Republican Senators were trying to warn us about with  Life Act legislation.

None of these laws accounted for the working pool that is now available to become part of the U.S.  These are the many that have fallen through the “cracks” and have become the undocumented pool.  Now there are also those who crossed over without inspection (illegally), but many from the 2001 Amnesty cannot even get a work permit because the LAW FAILED at what it was supposed to do, which was to help the U.S. economy in the long run.  Many of these U.S. citizen children were born here in the U.S. to undocumented parents who are still awaiting their turn under the “amnesty” that many decry.  These are the ones many seek to deport or electrocute on fences.  They followed the law and applied, but we failed them and their children.

To those who cry out for the Dream Act and nothing else: You live in a dream world.  The time for caring for our young and their rights under the same slogan has passed.  There is no vision to encourage work because when a candidate like Newt Gingrich or Rick Perry does see the long term benefit for the economy and America when they advocate for the youth, they are strangled with being anti-conservative.  The idea of just protecting the family and the youth is not strong enough to convince as history would show even when the Republicans lead the fight.

In order to begin to solve the web of deceit and lies of hope, let’s settle on the truth that the Dream Act, as it is tossed around at present, is just a dream.  Tough conservative publication like The Economist, and the Wall Street journal support a type of Dream Act and its economic benefits. Similarly, the CBO projects that a type of Dream Act would increase revenues by $2.3 billion over 10 years. And it is true that the economic benefit that we as a nation are to gain by helping the youth and those who were deceived should be of great consideration for the Republicans. But when those groups that are professional activists acting like “militant clowns,” shout Dream Act or nothing, imagine someone shouting fire in a crowded room.  They are misleading the youth with this draconian uninformed shouting.   They fail to realize that the Dream Act legislation in its current form is a kiss of defeat as it stands.  Just the name creates political gridlock.

There is malice behind some these people when they demand Dream Act or nothing.  Their notion is to hurt the U.S., the Latino Community, the Latino youth, and any idea of Immigration Reform by creating the idea that there is no room for compromise.  Like Romney and Santorum who fail to make the connection of Immigration Reform to the Economy, these groups are misleading not only the youth but America.  If the economy is not important enough to withstand the idea of compromise, then it should not matter who wins.  I believe Mitt Romney and Rich Santorum do not understand the terms of immigration or the economy.  The only candidate who has a vision is Newt Gingrich who understands the connection between Immigration Reform and Economic recovery.  He was, after all, available and involved in the times when the U.S. boomed in the economy and “amnesty” programs that triggered this boom passed.  Those who shout the fire mantra, need stay put and away from any hope for reform.  Because of your lack of knowledge on the subject matter, your voice is smothered into non-credibility like those candidates who shout that the Dream Act is Amnesty.  It is not, but because of your misleading militant voice it remains,  just a dream.

President Obama’s “new” found voice by way of his Executive Power, is a 180 degree change from a speech where he stated that as President, he had to enforce the laws on the books and that he could do nothing else to help the plight of the undocumented youth in the U.S., whose Latino population exists in the hundreds of thousands.  This power that he previously said that he didn’t have, is now conveniently discovered by way of the Napolitano Memo, five months before the November election and is expected to “temporarily” offer a band-aid fix, to a problem that has this country in a state of limbo.

The Napolitano Memo also comes after Obama received  a  letter about two weeks ago signed by nearly 100 law professors, who offered a strategy to President Obama outlining his authority to provide temporary relief from deportation. The announcement also comes on the thirtieth anniversary of the Supreme Court’s decision in Plyler v. Doe, which held that states cannot exclude undocumented children from elementary and secondary schools.

Deferred action exists under, the Immigration and Nationality Act (INA), §103(a), USC 8 §1103 and states that

“The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”

By way of the Executive Power, the Supreme Court has ruled that the President will grant power to its administrative agencies so as to enforce certain laws. Additionally, depending on the timing, the deferred action can prevent someone from being placed in removal proceedings, suspend a current deportation order, or stay an existing deportation order.  What the Memo Directive does not provide, is a way to change or adjust status under deferred action.

In using his executive power, Obama is not circumventing the law, but he is conveniently using it, by way of the Attorney General and the Department of Homeland Security at a time when he seeks to desperately keep Latinos on his side with “nuggets” of empty promises.  Previously, Obama never pushed for immigration reform in 2008 or thereafter.  He taunted the hopeful by stating that he would pass the Dream Act if placed on his desk, but never lifted a finger to fight for it.

The Napolitano Memo is also at the heels of criticism for the Morton Memo, put in place one year to date, which was supposed to use Prosecutorial Discretion to prevent low priority cases from being placed in deportation proceedings.  This was supposed to have included the young immigrants without a criminal record and who were currently in school.   But the Morton Memo failed to give any type of relief as ongoing review of pending removal cases yielded disappointing results and cases continued to surface, of immigrants being denied prosecutorial discretion despite compelling circumstances.

When Senator Rubio introduced the idea of a new “Dream Act” version, which by the way is very similar to what this “memo” of deferred action seems to say, the President did not applaud the Senator for attempting to help the youth.  He instead, laughed during an interview and stated that he (the President) would work on immigration in the next five years.  And so, for the next few years, Latinos can expect “nuggets” of promises to be thrown our way.

This outreach is temporary and is a promise to the Latino community that the youth will be out of harm’s way, for the moment.  This Memo is slight power that now is distributed to agencies by way of  the Attorney General, and is applied in a discretionary fashion.  For now it is temporary and fails to address what will happen to the young adults in a few years after they age-out or cannot travel, or adjust their status.  For now, everyone is on board, but the after affects when felt, will stir us to ask why didn’t we fight for more?

Senator Rubio’s version was more plausible because it sought to go through the proper channels to have the Dream Act become Congressional Law.  The law would have allowed the youth to become educated and then follow through to a non-immigrant visa that would have placed them in line for receiving their Legal Permanent Residency.  It would have created a set of educated, high tax payers, who could have become part of our society and eventually become U.S. Citizens by competing for it.

The Napolitano Memo is Administrative and non-binding meaning that it can be rescinded at any time, and these Latino youth would be in the same limbo as before.  Moreover, the Memo gives approximately 800,000 to 1.5 million the opportunity to apply for the deferred action if they have the following:

1. immigrants may apply for a two-year renewable grant of “deferred action” if they entered the United States before age 16;
2. are younger than 30;
3. have lived continuously in the United States for at least five years;
4. have not been convicted of a felony or significant misdemeanor; and are currently in school, have graduated from high school or earned a GED, or served in the military.

First, the Memo states that all laws are to be enforced and those with the initial power to decide whether to implement the Memo for those outside the court system are CBP, USCIS, and DHS.  These agencies who first encounter the youth shall have the power to use discretion as to whether the youth should be placed in removal proceedings.

Second, if the youth are currently in removal proceedings, the standard will be applied in a discretionary manner on a case by case basis, by whom is not clear.  Using the criteria stated above, those making the decision will decide the fate of these youth.  The many who did not finish school or were not enlisted in the military are not eligible for this temporary relief.   Moreover, it is unclear whether those  about to be 31 years will be in unlawful status as this deferred action does apply to them.

Finally, those who are not currently in proceedings will be eligible to apply for the deferred action through USCIS.  The agency will  use the criteria stated above, and use discretionary authority to decide the status of the youth.  It is not for certain if the applicants will be approved or not, but it is a careful choice that the many will have to make.

If we listen to what Obama is saying, he speaks loud and clear in that he states, that this is not amnesty, it is not a benefit, and will not give the youth a path to citizenship.  What it gives us is a promise that will not be a congressional “law” and may not be enforced if we use the Morton Memo as an example.  He is trying to win favor by now coming forward to use powers that he had all along and has given us the Napolitano Memo that is limited.  In other words, he is promising to right a wrong that he should have legally done a long time ago, again.  Latinos should remind him that we are conservative when it comes to family, and will protect our children and their dreams this time around.

Linda Vega is an Immigration Attorney and  Founder of Latinos Ready To Vote