A Catch for Undocumented Immigrants in Recent Reforms

Years of hiding mean squeaky-clean youths out of school don't have the paper trail to prove they've been in the U.S.. Those with infractions on their records can be better off.
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(David Goldman/AP)

Dominican-native Yilbert Pena used to divide his life into two halves. The first half was the blithe era until his 16th birthday. That day he went to his mother asking for the papers he needed for his drivers permit application and discovered he possessed none of them. Pena is a burly, affable presence and quick to smile, but he offers a gloomy analogy to describe learning of his undocumented status. "It's like suddenly becoming handicapped," he says. "Everyone around you is doing stuff you can't." Seeing no benefit in earning a high school diploma if he was barred from jobs that demanded one, Pena dropped out. He fathered a child. Paranoid about being deported to an island country he had left when he was eight years old, he hid his status from everyone he knew, including the mother of his daughter.

On June 15, 2012, though, Pena saw a glimmer of a radically different life. President Obama--whom Pena had been phone banking for in anticipation of the November election--announced he was going to suspend deportations of the so-called DREAMers. These were, in the president's words, people who came to this country as children, and "often have no idea that they're undocumented until they apply for a job or a driver's license or a college scholarship." He was describing Pena's situation, and the just-turned 19-year-old remembers excitedly hugging his girlfriend as they watched the television clips and then phoning his mother to share the news. "This," he told himself, "could change everything."

There is one thing Pena wishes the president had added in his Rose Garden statement, though: a directive to DREAMers to go out and acquire documentation showing they were in the United States. Because when the regulations for the Deferred Action for Adult Children (DACA) program were published, it turned out that applicants not only had to meet an age requirement (16 and under when they had arrived, and no older than 30 when the change was announced) and provide proof of residency for the past five years, but also had to demonstrate they had been here when the President had unfurled the new policy. And Pena, who had been so careful not to leave footprints, didn't have any receipts or bills to show that on June 15th he was living in New York, the city he'd called home for most of his life.

It's a problem many of the older DACA-eligible crowd--the ones who have left or graduated from high school years ago--are encountering. "For applicants who don't have current school transcripts and who have been told for years to hide their presence for their own safety, it can be challenging to prove they were here," says Dan Berger, a partner in the Northampton, Mass.-immigration law firm Curran & Berger. "Pulling together their applications takes creativity and detective work." Deeds or mortgages, tax receipts, dated bank transactions, pay stubs, and utility bills--basically, the evidence the Department of Homeland Security recommends submitting--tend not to be part of an undocumented immigrant's life. It's an issue that could plague millions of immigrants if broader reform does indeed pass. If the experience of the DACA cohort is a good indication, when these men and women have come into contact with Official America, it was often unintentionally.

That's made for some ironic situations. Immigrants who have committed infractions that fall short of a felony can find their brush with the law turns out to be the key piece of evidence for their DACA application. "It's always a strange conversation when you tell your client that, 'yes, you should definitely apply despite the speeding ticket, and as a matter of fact we're going to submit it to the federal government," says Laura Lichter president of the American Immigration Lawyers Association. "A lot of immigration law is quite frankly back asswards."

Gail Thalmann, a retired teacher who lives on Long Island, about an hour and a half away from Pena, has helped several of her former students through their DACA applications. A Salvadoran kid who graduated in 2011 and then worked off of the books for an auto repair shop had a very difficult time proving he'd been in the country after he'd left school. The Department of Homeland Security returned his application with a request for more evidence. Then there is the boy whom Thalmann--who asked to be referred to by her maiden name, because she's known for working with a group of Latino kids and doesn't want to draw attention to their undocumented status--affectionately refers to as the "careless one." He had no trouble pulling together his application: for 2012, he had a driving without a license ticket and for the June 15th date he could submit the hospitalization record he had acquired after nearly cutting off his finger with a hedge trimmer. "It's the kind of stuff I wouldn't want on my record," she says. "But given the circumstances, I'm glad it's on his."

Pena, unfortunately, ended up in a position similar to that of the squeaky-clean ex-student. Most of his documents were from school: In addition to report cards, there was a letter the administration had sent to his home warning he was in danger of flunking gym. After he dropped out and started working in construction, the rest of his papers came from situations where acquiring documentation wasn't a matter of choice. His daughter's birth certificate attested that Pena had been present at Jacobi Medical Center in the Bronx on December 29, 2010. His closest friend, a Marine, had sent Pena a letter from Parris Island, S.C. while he was in boot camp; that proved Pena was in the country in early 2012. The elusive piece of evidence was for June. He couldn't think of anything that could suffice.

Pena had racked up receipts that day; they just weren't in his name. He'd made several calls on his cell phone, but the H2O prepaid plan was under the name of his stepfather, who is a legal resident. Pena had used a debit card to take money out before he'd boarded a bus to Orchard Beach in the Bronx, but it was also under his stepdad's name. What frustrated Pena most was that his boss had urged him to open a bank account; instead Pena had stashed cash in a safe he'd bought at Home Depot that looked like an Ajax cleaner so it wouldn't stand out among his cleaning supplies. "I was just scared to put my name on anything," he explains. That had seemed prudent. Now it was keeping him from the program that would have allowed him to restart a life that had seemed halted for three years.

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Alexandra Starr

Alexandra Starr is an Emerson fellow at the New America Foundation.

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