Fact Checker | Analysis
September 7, 2017 at 3:00 AM
"Now, let's be clear — this is not amnesty, this is not immunity. This is not a path to citizenship."
— President Barack Obama, announcing the Deferred Action for Childhood Arrivals (DACA) program, June 15, 2012
"Data Indicate Unauthorized Immigrants Exploited Loophole to Gain Legal Status, Pathway to Citizenship"
— headline of news release by Sen. Charles E. Grassley (R-Iowa), Sept. 1, 2017
One criticism of DACA, which the Trump administration has said it will rescind unless Congress acts to make it permanent, is that it has allowed unauthorized immigrants to exploit the system and gain U.S. citizenship, despite former President Barack Obama's statement that it would not do so.
In a news release on Sept. 1, Sen. Charles E. Grassley (R-Iowa) asserted that "preliminary data … indicate that the Obama administration allowed thousands of DACA recipients to exploit an immigration law loophole to obtain green cards." More than a thousand DACA recipients had already obtained citizenship, the news release added. The announcement resulted in a flurry of news stories.
So, case closed, Obama told a fib? Actually, it is much more complicated than that. Let's take a look.
DACA was intended to let "dreamers" — children of illegal immigrants who, in many cases, knew no other home than the United States — avoid deportation and get work permits that are renewed every two years. About 800,000 people have participated in the DACA program.
But that does not necessarily mean they are stuck in DACA forever. If a DACA participant marries a U.S. citizen, for instance, he or she could seek to obtain status as a lawful permanent resident, more popularly known as a green card. There are other routes to obtaining a green card, such as being a victim of a crime and helping police, being a battered spouse or a victim of human trafficking, and so forth. Green-card recipients are eligible to apply for U.S. citizenship after five years.
Marrying a U.S. citizen does have a procedural hurdle for a green card inside the United States — you have show you entered the country legally. (Alternatively, some individuals married to a U.S. citizen may receive a green card abroad by securing an "extreme hardship" waiver that allows them to re-enter the country after leaving.)
For perhaps 50 percent of DACA participants — precise numbers are not available — that is not a problem. That's because many undocumented immigrants overstay a visa, rather than illegally cross the border. In 2015 alone, more than 400,000 foreign visitors stayed in the United States beyond their visa, according to the Department of Homeland Security. Robert Warren, a demographer and senior visiting fellow at the Center for Migration Studies, estimates that about 50 percent of the 1.258 million people eligible for DACA are visa overstays.
A person who entered the country illegally, even as a child, would not have this option. But it turned out there was one possible way to get around this, in what Grassley labeled as a loophole. Under existing law, a person with a pending application for a change in immigration status could seek to travel abroad under what is known as "advance parole" to see a sick relative, attend a funeral or for another specific reason, such as education or employment (but not vacation travel).
Under the guidance issued by the Obama administration, a DACA participant could not travel overseas automatically but could apply for "advance parole" for humanitarian, educational or employment purposes.
The (Riverside, Calif.) Press-Enterprise in 2016 reported that Southern California universities were using the "advance parole" provision to allow DACA students to attend a study-abroad program in Mexico, Vietnam or other countries. Once a student returned, he or she then had evidence of a legal entry, which in theory could be used to apply for a change in immigration status if other conditions were met (such as marrying a U.S. citizen). The article did not identify anyone who had done this, only that some experts thought it might be possible.
The problem is that, despite the headline on Grassley's news release, no one knows how many people took advantage of this provision to successfully change their status.
The data released by Grassley, gathered from U.S. Citizenship and Immigration Services (USCIS), showed that through Aug. 21, 45,447 DACA recipients had been approved for travel overseas through advance parole. Separately, 59,778 DACA recipients had applied for green-card status — and 39,514 had been approved. Of the people who had received green cards, 1,056 had become U.S. citizens.
Note that more people applied for green-card status than had been approved for advance parole. That's because, as we noted, there are many ways that DACA recipients can obtain green cards, especially if they had simply overstayed their visa.
"Many DACA recipients, independent of advance parole, have been able to get green cards," said Jose Magaña-Salgado, managing policy attorney at the San Francisco-based Immigrant Legal Resource Center.
"We do not know what percentage of the 39,000 green-card holders are the recipients of advanced parole," acknowledged George Hartmann, a spokesman for the Senate Judiciary Committee. "We are still awaiting that answer."
But that did not stop some news organizations from erroneously reporting that Grassley's data showed that 45,000 DACA recipients were using a "DACA backdoor" to obtain green cards.
In June 2016, the Senate Judiciary Committee posted a letter from the USCIS that actually had more detail. That letter said that as of Dec. 31, 2015, 22,340 DACA recipients were approved for advance parole. Of that number, 2,994, or 13 percent, had subsequently applied for and been approved for a green card. Moreover, the letter noted that a certain number of these people (such as holders of lapsed visas) who were approved for a green card probably would have been eligible even without receiving advance parole. But USCIS said it was too time-consuming to review each case to determine a precise number.
If the 7-to-1 ratio had remained the same through 2016 and 2017, then the maximum number of DACA participants who had received advance parole and then been approved for a green card is about 6,000. That means the number of people who entered illegally, participated in DACA and then used advance parole to obtain a green card is going to be even smaller than that number — 3,000 or less. That's out of a universe of 800,000 DACA recipients.
"In my experience, few DACA recipients have taken advantage of that so-called 'loophole,' " said immigration attorney Amien Kacou, who said he believed a majority "of my DACA clients were overstays, not illegal entrants."
In any case, President Trump's announcement meant that no more advance paroles would be granted for DACA participants, including pending applications.
Grassley's news release was confusing, and some news organizations jumped to false conclusions in reporting on it. About 45,000 DACA recipients had been approved for advance parole, and 39,000 DACA recipients had received green cards. But those numbers represent a Venn diagram with very little overlap. It certainly fails to take into consideration that about half of DACA holders are visa overstays and thus did not need advance parole to begin to qualify for a green card.
At most, 3,000 DACA recipients, or 0.375 percent, may have used the advance-parole program to obtain a green card. Whether such a small percentage, given the uncertainty of the numbers, constitutes a violation of Obama's claim that DACA was not a path to citizenship gets us into the realm of opinion. Thus, we will not do a Pinocchio rating on Obama's statement.
As for the Grassley news release, it says that "thousands of DACA recipients [were able] to exploit an immigration law loophole to obtain green cards." Again, it's a matter of opinion as to whether this is a loophole. Given that we estimate about 3,000 may have used the advance parole provision to begin the green card process, "thousands" skates by as technically correct. But it's a much smaller number than the figures touted in the release — and Grassley's staff has a responsibility to set the record straight about the incorrect news reporting.
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