Building Off the Misfired Bullet Known as the Deferred Action for Childhood Arrivals

Written by Tom Pfeifers

“They’re Americans in their heart, in their minds, in every single way but one — on paper.”  – President Barack Obama

A Chance at the American Dream

The “American Dream” is a phrase that is often used to describe a desire for prosperity and success. Many Americans take for granted the things that come with citizenship, like healthcare, an American identity, and a job, that bring prosperity and success. These things do not come easy for children who were brought here illegally by their parents through no act of their own. These illegal immigrants here in the United States, also known as childhood arrivals, and are in pursuit of their “American Dream” as well as their dream to be an American. These childhood arrivals dream and desire to call the United States home. At the same time they want access to healthcare, a work permit, and an identification card.

Many of these childhood arrivals are shocked to find out they are not citizens. It might be difficult to imagine not being an American citizen after growing up in Boston; cheering for the Celtics; playing the saxophone; shopping; and graduating from high school. Unfortunately, this is the reality for Oumou Troure and about 1.2 million other children who were taken from their homes and brought to America in search of a better life. Many of these children, still here, are left without hope because they do not have a clear path toward citizenship. For years these individuals, many just like Oumou, have patiently waited for their chance to fulfill the “American Dream.”

What About the DREAM Act?

Those with a desire to become United States citizens needed a vehicle to get there. These dreamers believed that the Development, Relief and Education for Alien Minors Act (DREAM Act) was the chance to fulfill their “American Dream.” (http://www.dhs.gov/deferred-action-childhood-arrivals). The DREAM Act, although amended several times since first introduced in 2001, states that children between 16 and 31 years who (a) were brought here by a parent as a child, (b) have been in the United States for at least 5 years, (c) have not been convicted of a felony, or significant misdemeanor, and d) are willing to go to college or serve in the military are able to become American citizens. This proposed legislation said to the dreamers that with hard work they would be able to earn their citizenship and a place in the fabric of America. However, since 2001 these dreamers have watched as the DREAM Act continuously failed to become law.

Deferred Action for Childhood Arrivals (DACA)

The DACA is an executive order that was issued on June 15, 2012. Right from the start, President Obama acknowledged that this DACA executive order was not a permanent resolution

DACA Eligibility Requirements

The individual must:

1. Be under the age of 31 at the time the order was issued,

2. Have come to the United States before his or her 16th birthday;

3. Have continuously resided in the United States since June 15, 2007;

4. Have been present in the United States on June 15, 2012, and the date of filing the application;

5. Be currently in school or have graduated from a U.S. high school or received a GED or served in the military; and

6. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors and do not otherwise pose a threat to national security or public safety

but rather a temporary action in hopes of making a more efficient and equitable immigration policy. An executive order is exactly what it sounds like, it is an order given by the president to officers of his branch (executive), telling them to alter a policy; stop certain activity; change management practices; take an action; or accept a delegation of authority. The DACA is nothing more than a two-year deportation deferment, which offers no chance of permanent citizenship. In order to be eligible for this deferment, applicants must meet certain criteria that are similar to those of the DREAM Act.

Imagine those hopeful dreamers hearing the news that President Obama issued an executive order called the Deferred Action for Childhood Arrivals (DACA), which grants a two year deportation deferral and work permit to those applicants who meet the necessary requirements. Many questions and concerns undoubtedly ran through their minds after hearing the news:

1.  “What is an executive order? Is it a law?”

2. “This is only a two year deferment, why am I going to risk future deportation not only for myself but for members of my family as well?”

3. “I’m not eligible for healthcare benefits, but I can still receive a work visa and an identification card, so there’s a start.”

4. “I don’t know how I’m going to provide residency documentation, I’ve lived an undocumented life in the United States.”

Many dreamers probably found out that an executive order is a loose form of a law that can be overturned at any time. They also probably found out that states like Arizona are denying identification cards to eligible applicants. Additionally, they probably laughed when they wondered if their employer would admit to employing illegal immigrants in order to help them meet the residency requirement.

Why We Need a Road Toward Permanent Citizenship

Implementation of the DACA executive order, which is loosely based on the Dream Act, is counterproductive unless further action is taken because it fails to provide a permanent solution for the

“Among the 1.26 million prospective beneficiaries who are ages 15 and over, 58 percent (close to 740,000) were engaged in the labor force.”

dreamers here in the United States. The DACA executive order creates several problems that discourage individuals from applying. The first problem is there is now more uncertainty than predictability. This is because the order only grants a two-year deferment.  Successful applicants are only given a work permit and an identification card after a costly, lengthy application process. The work visa will allow those successful applicants to ply their skills in the workforce and in turn, pay taxes on their income. However, why should applicants apply for the temporary work visa when the executive order isn’t permanent and they are already working without paying taxes? We can assume from these numbers (58% were engaged in the labor force) that they were either already paying taxes, which means there is no upside to handing over their information for a two-year deferral, or they are working “under the table” not paying taxes, still with no upside to handing over their information to the government.

The second problem is there is no access to healthcare benefits for successful applicants. This is unjust because on the one hand, you are telling these successful applicants that they will have a chance to become part of the workforce and in turn will pay taxes on their income, but at the same time they will not be eligible for some of the public benefits that come along with their hard work. The right to healthcare for United States citizens should be given to those in pursuit of the “American Dream” because every citizen has the right to life, liberty, and the pursuit of happiness. Although successful applicants will be deemed “lawfully present” in the United States, they will remain blocked from benefits and subsidies, including the Affordable Care Act (Obamacare).

The third problem is the risk for future deportation. The thought of handing over everything to the government is nerve racking, because the order can be overturned at any time. Regardless of whether an applicant is successful or not, there is still fear over what will happen with the information they provide to the government. Access to personal information is a major concern that has created skepticism, particularly since this is the first executive order of its kind.

The final problem is the order does not have a provision that protects applicants’ employers when they verify employment, thus leading to little hope in establishing a paper trail. The burden of proof rests upon the dreamers to put together a paper trail establishing their continued residency for the last five years. The government issued a list of items that may be used to establish this residency. However the one that seems most likely to assist the residency requirement is employment records (pay stubs and W-2 forms). A major obstacle in establishing a paper trail is the unwillingness of employers to verify applicant’s employment. It is understandable why employers would be unwilling to admit, without government immunity, that they currently employ or employed workers who were in the country illegally.

The Solution

In order to solve this problem, the 2010 DREAM Act should be enacted with an added healthcare benefits provision, as well as a provision safeguarding the employers of the potential applicants. This is necessary to provide certainty and assist eligible applicants in establishing their residency. The DACA executive order must be built upon in order to provide certainty for the dreamers here in the United States. The DACA executive order is a positive step in an area of legislation that has been at a standstill since 2001, but it cannot be the final one. The DREAM Act proposed in 2010, along with provisions securing health care and employer protection, must be enacted to create a path toward permanent citizenship. As mentioned, these added provisions are necessary because the 2010 DREAM Act, if passed today, does not protect these childhood arrivals. The reality of the situation in the United States is that there are millions of immigrants here illegally. By providing a path toward permanent citizenship for those who were brought here through no acts of their own, we can boost the economy instead of continuing to allow these individuals to be a burden. The window to enact this concrete legislation is open right now, and the proposed legislation should be passed just like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed following executive orders. Think of dreamers like Oumou Troure, who are looking to make a positive impact in the country they have called home for as long as they can remember.

Expanding Inheritance Rights to Posthumously Conceived Children

Written by Daniel Perrone

In New York, some innocent children, namely, posthumously conceived children, are suffering the consequences of the state legislature’s failure to sync the law with technology. Advancements in biotechnology have enabled people to conceive genetically related children, even after their own death. These children, however, face the dire consequence of being denied inheritance rights, referred to herein as a “class gift,” merely because of the circumstances surrounding their birth. Admittedly, posthumously conceived children do not come into the world the way the majority of children do, but they are children, who should be granted the same rights, benefits and privileges that other children enjoy.

New York’s current class gift statute is called the Estates, Powers & Trusts Law (EPTL). EPTL § 2-1 defines a class gift as a disposition of property to persons who are identified by a common characteristic (i.e., by a group label), such as children or issue. As described, this group label seems to extend class membership to posthumously conceived children. For instance, EPTL § 2-1.3(a)(3) extends class membership to non-marital children. Since posthumously conceived children are non-marital children, they appear to qualify as class members under this section. Likewise, EPTL § 2-1.3(a)(2) extends class membership to children who are conceived before disposition of the class gift becomes effective. Thus, it is a logical assumption that posthumously conceived children, who are conceived prior to disposition, are to be included as class members under this provision. 

A literal interpretation of EPTL § 2-1.3, however, proves to be problematic. EPTL § 2-1.3 was enacted in 1966, long before the legislature could have anticipated that children would, or even could, be conceived after one of their parents has died. In fact, In re Martin B., the only New York case to directly address this issue expressly states that EPTL § 2-1.3 was not intended to extend class membership to posthumously conceived children. Rather, EPTL § 2-1.3 is interpreted to limit class membership to children who were conceived during their parents’ lifetimes.

To correct this inequity, the EPTL must be amended to extend class membership to posthumously conceived children. However, things are not quite that simple. Certainty and finality in determining class membership are critical to society’s interest in the orderly administration of estates. Accordingly, estates cannot be held open for years to allow for the mere possibility that a child may be conceived at some indeterminable point in time. On the other hand, donative intent, as well as the rights of posthumously conceived children, deserves respect and must be taken into account by the legislature.

To adequately strike a balance between these competing interests, the legislature should focus on the inherent nature of class gifts. To create a class gift, EPTL § 2-1.3 requires only that a group label describe the beneficiaries. Thus, the legislature should codify a presumption that the creator of a class gift intends to include, as class members, all those who fall within that group label, including posthumously conceived children. This does not, however, prevent the creator of a class gift from explicitly excluding such children. Rather, it simply creates a default provision that balances the competing interests.

In addition to creating a presumption of intent, the legislature should treat posthumously conceived children just like any other class member. Since posthumously conceived children are non-marital children, they should have to meet the requirements set forth by EPTL § 2-1.3(a)(3). That section requires non-marital children to establish maternity or paternity to qualify as class members and, therefore, posthumously conceived children should have to do so as well. Similarly, to qualify as class members, posthumously conceived children should have to abide by EPTL § 2-1.3(a)(2), which requires children to be conceived before disposition of the gift becomes effective.

Together, these requirements strike a balance between the competing interests discussed above. On the one hand, they provide for certainty and finality in the administration of estates by closing class membership once disposition of the gift becomes effective. On the other hand, they reflect the fact that posthumously conceived children are, and should be treated, just like any other class member. Thus, these requirements eliminate the possibility that donative intent may be frustrated, while providing posthumously conceived children with the same rights, benefits and privileges that other children enjoy.

There are, of course, those who argue that granting posthumously conceived children inheritance rights might lead to fraud and other forms of unethical behavior that could negatively impact the distribution of estates. To address this problem, the legislature should simply require the deceased parent’s written consent to the posthumous use of his or her genetic material.

Additionally, the deceased parent should be allowed to limit the persons who are allowed to use his or her genetic material to conceive a child, thereby reducing any potential for fraud or abuse by those wishing to conceive a child strictly for inheritance purposes.

The legislature must keep in mind that posthumously conceived children are still children. These children are born after one of their parents has died, which is burdensome enough as it is. The law should not add to that burden by denying these innocent children the right to inherit.