The Obama Dream Act
by: Sengelsman • August 20, 2012 • no comments
Today I had the pleasure of meeting a young woman, call her Leiza, who has submitted her application under the Deferred Action Plan, Obama's answer to continued problems passing the Dream Act. Obama's Plan is technically an executive order not an act, but since it functions like the proposed Dream Act I'm just going to call it that.
Leiza has been hiding under the threat of deportation her whole life, but now is proud and excited for her opportunity to become documented. Hers is a once-in-a-lifetime opportunity.
The Dream Act has a few very strict requirements, the main one involving one's criminal history: No felony; No "significant misdemeanor"; And no "multiple misdemeanors" which amounts to three or more non-significant misdemeanors not occurring on the same day and not arising from the same act or scheme of misconduct.
Leiza's excitement got me thinking. How easily a criminal defense attorney could screw up a young undocumented person's chances at this once in a lifetime opportunity. By not realizing what "significant misdemeanor" means and pleading a young client to something that should be - could maybe be - otherwise avoided.
What are the requirements of the Dream Act?
- Be 30 years old or younger;
- Have entered the US when she or he was under age 16;
- Have been physically present in the US on June 15, 2012 and continuously resided in the US during the preceding five years (except for brief and innocent absences for humanitarian purposes);
- Be currently in school or have graduated from high school or obtained a GED, or are honorably discharged from the coast guard or armed forces; and
- Have not been convicted of a felony, a significant misdemeanor, or multiple misdemeanors, and not pose a threat to public safety or national security.
A "significant misdemeanor" is currently defined to include any offense punishable by no more than one year imprisonment and involves: violence, threats, or assaults, including domestic violence; sexual abuse or exploitation; burglary, theft or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.
Imagine a situation where your client - who is otherwise eligible for the Dream Act - is charged with a single count of misdemeanor Assault. You plead her out and she goes home where she complies with everything required of her by probation. She then applies for the Dream Act and is told she is ineligible. How could you have helped her at the conviction stage? You could have offered two simple harassments, "to be run consecutive upon revocation" to protect her and give her a fighting chance with the Dream Act. Or maybe a criminal mischief.
I chose an easy "what could you have done?" as an example. We at MPD's Padilla Project (http://www.mpdlaw.com/immigration) are here to help. You may not be able to convince your District Attorney to do what protects your client, but you will have tried. Remember that the language in Padilla suggests a state consider immigration consequences (just as it considers mental health issues or drug / alcohol concerns) when making a plea offer. The prosecutor may tell you "I cannot treat this defendant differently than others without immigration consequences." This is inaccurate. Padilla allows the prosecutor to do just that given the immense collateral consequences attached to immigration proceedings. Have a copy of Padilla with you when you negotiate (130 S. Ct. 1473 (2010).
