Young illegal aliens in the United States of America are young people living in the U.S.A. illegally. An estimated 1.1 million undocumented minors resided in the U.S. as of 2010, making up 10% of the undocumented population of 11 million. By 2012, it had increased to approximately 16% of the undocumented population. Undocumented students face unique legal uncertainties and limitations within the United States educational system. They are sometimes called the 1.5 generation (as opposed to first- or second-generation), as they have spent a majority of their lives in the United States.
Children have the legal right to a public K–12 education regardless of immigration status due to the 1982 US Supreme Court ruling in Plyler v. Doe. After navigating through primary education, undocumented youth transition into an early adulthood that does not grant them those provisions. Although some undocumented students find their way to legal status, many remain undocumented. Undocumented youth experience a period of adapting to a new identity (being "illegal") that is stigmatized. Coming of age, many undocumented minors become negatively distinguished from their peers because of their inability to work legally, obtain a driver's license, or participate in post-secondary education. These limitations with regard to citizenship frequently prove to be obstacles to the person's opportunity for social and civic engagement. Deferred Action for Childhood Arrivals (DACA) is a program that gives undocumented individuals the ability to be legally present in the United States, giving them an SSN and a work permit.
Legislation affecting undocumented youth The undocumented population of the United States faces unique legal uncertainties and limitations, especially in the pursuit of education. Undocumented students have been awarded some rights due to the 1982 Supreme Court ruling on Plyler v. Doe, but post-secondary education remains uncertain for many undocumented minors. The Personal Responsibility and Work Opportunity Reconciliation Act and the Immigration Reform and Immigrant Responsibility Act, both of the Clinton administration, added more barriers for undocumented minors attempting to receive post-secondary education. The Development, Relief, and Education for Alien Minors Act in 2010, on the other hand, gave undocumented minors a path towards legal immigration status. Deferred Action for Childhood Arrivals followed close behind in 2012; President Obama signed an executive branch memorandum deferring immigration enforcement for minors meeting specific requirements. Some minors benefit from these legislative efforts, eventually gaining legal immigration status, while many remain undocumented.
Plyler v. Doe
The Court found that where states limit the rights afforded to people (specifically children) based on their status as immigrants, this limitation must be examined under an intermediate scrutiny standard to determine whether it furthers a substantial goal of the state.
Prior to 1975, all students in Texas were able to attend public elementary and secondary school. The state government provided funding to schools based on the number of students enrolled. In May 1975, the state legislature amended the Texas Education Code to provide that only U.S. citizens or lawfully admitted non-citizens would be counted for financial aid purposes.Lopez, Lopez 2010, p. 16. Schools were given the option to allow or reject undocumented students and to charge tuition if they chose to accept them. School officials in Tyler, Texas, under the direction of Superintendent James Plyler, began charging $1,000 annual tuition to all undocumented students—about 60 from a student body of 1,600. In September 1977, the Mexican American Legal Defense and Educational Fund (MALDEF) filed a class action on behalf of sixteen undocumented Mexican students of the Tyler district.
The trial court found that the Texas law violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it amounted to a total deprivation of education without a rational basis. The court rejected the state's arguments regarding the cost of educating undocumented children, finding that the federal government largely subsidized the additional costs that the education of these children entailed and that "it is not sufficient justification that a law saves money."
In order to comply with Plyler, education policy analysts have suggested that schools may not: deny admission to a student on the basis of undocumented status; treat a student fundamentally differently from others when determining residency; engage in practices that frighten undocumented students and their families away from school access; require students or parents to disclose or document immigration status; make inquiries of students or parents that may expose their undocumented status; require Social Security numbers from any student.Lopez, Lopez 2010, p. 40.
Plyler does not extend to post-secondary education but guarantees undocumented students the opportunity to receive a high school degree or equivalent certification.
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) was President Bill Clinton's major welfare reform. PRWORA is most known for the creation of the Temporary Assistance for Needy Families (TANF) program. Additionally, PRWORA set the standards for how courts and institutions determined the eligibility of federal, state, and local benefits and services. The reform states those who are not "qualified aliens" are ineligible for federal public benefits. The act also gives states the discretionary power to determine the tuition rates of publicly funded schools and the authority to provide state financial aid. If states do not pass specific legislation regarding these matters, then federal legislation supersedes and inherently prohibits state financial aid for unauthorized immigrants.
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
In 1996, to expand the restrictions of PRWORA, Congress approved the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to tighten immigration law in the United States.Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-206, 110 Stat. 3009. Section 505 of IIRIRA prohibits public higher education institutions from making eligible those who are unlawfully present in the United States for post-secondary education benefits that U.S. citizens or nationals, regardless of state residency, are also eligible for.Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-120.110 STAT. 3009–594 §240A(b) (1996). Sec. 240A. Cancellation of Removal; Adjustment of Status. (b) Cancellation of Removal and Adjustment of Status for Certain Permanent Residents. (1) IN GENERAL.—The Attorney General may cancel removal in the case of an alien who is inadmissible or deport- able from the United States if the alien— (A) has been physically present in the United States for a continuous period of not less than 10 years imme- diately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. The act was enacted in 1997. States complied with the mandates while overcoming the restrictions by basing eligibility for in-state tuition on factors other than state residence. For example, whether the student had attended a high school in the state as opposed to being a legal resident of the state.
Development, Relief, and Education for Alien Minors Act (DREAM)
The Development, Relief, and Education for Alien Minors (DREAM) Act is a federal bill that would permit states to determine state residency for higher education or military purposes. This bill was first introduced in the Senate on August 1, 2001, and was most recently reintroduced in Congress on March 26, 2009. A Senate filibuster blocked it on December 18, 2010. It would provide a mechanism for undocumented students of good moral character to become legal permanent residents. The DREAM Act initially allowed beneficiaries to qualify for federal student aid but was changed into the 2010 version of the bill. In order to be eligible, individuals must have come to the U.S. as children (under the age of 16), graduated from a U.S. high school, and be a long-term resident (at least 5 years). An age cap of 35 was also set. The latest version of the DREAM Act does not grant legal immigrant status to anyone for at least two years. Previous versions of the act would have immediately granted legal immigrant status to eligible individuals. Many other limitations were also included in this latest version, among them the removal of access to healthcare benefits and limits to chain migration.
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, the Department of Homeland Security (DHS) announced the executive (President Obama and his administration) decision to defer immigration enforcement for undocumented youth who meet specific requirements set under the Deferred Action for Childhood Arrivals (DACA) plan. This order provided temporary relief from immigration enforcement and deportation proceedings, as well as the authorization to work.Obama, B. (2012). Remarks by the President on immigration. Rose Garden, White House, Washington, DC. Retrieved from www.whitehouse.gov The Secretary of Homeland Security, Janet Napolitano, released a memorandum to the U.S. Customs and Border Patrol, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement, stating that immigration laws should be enforced sensibly and with consideration to the individual situation. In the case of these young people living in the U.S., she stated that they had no intent on breaking any law and should have the opportunity to be productive people in this country.Napolitano, J. (2012). Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.
Individuals may request DACA if they meet the following requirements:Department of Homeland Security. (2016). Consideration of Deferred Action for Childhood Arrivals (DACA). Under the age of 31 as of June 15, 2012 (at least 15 years or older at the time of application); Came to the United States before the age of 16; Have continuously lived in the United States since June 15, 2007, up to the present time; Were physically present in the United States on June 15, 2012, and at the time of making a request for consideration of deferred action with USCIS; Had no lawful status on June 15, 2012; Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.