II

Calendar No. 425

107TH CONGRESS

2D SESSION S. 1291

To amend the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 to permit States to determine State residency for higher

education purposes and to authorize the cancellation of removal and

adjustment of status of certain alien college-bound students who are

long-term United States residents.

IN THE SENATE OF THE UNITED STATES

AUGUST 1, 2001

Mr. HATCH (for himself and Ms. CANTWELL) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

JUNE 20, 2002

Reported by Mr. LEAHY, with an amendment and an amendment to the title

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To amend the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 to permit States to determine

State residency for higher education purposes and to

authorize the cancellation of removal and adjustment

of status of certain alien college-bound students who

are long-term United States residents.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Development, Relief,

3 and Education for Alien Minors Act’’ or ‘‘DREAM Act’’.

4 SEC. 2. RESTORATION OF STATE OPTION TO DETERMINE

5 RESIDENCY FOR PURPOSES OF HIGHER EDU6 CATION BENEFITS.

7 Section 505 of the Illegal Immigration Reform and

8 Immigrant Responsibility Act of 1996 (division C of Pub9 lic Law 104–208; 110 Stat 3009–672; 8 U.S.C. 1623) is

10 repealed.

11 SEC. 3. CANCELLATION OF REMOVAL AND ADJUSTMENT OF

12 STATUS OF CERTAIN LONG-TERM RESIDENT

13 STUDENTS.

14 (a) SPECIAL RULE FOR CHILDREN IN QUALIFIED IN15 STITUTIONS OF HIGHER EDUCATION.—

16 (1) IN GENERAL.—Notwithstanding any other

17 provision of law and subject to paragraph (2), the

18 Attorney General may cancel removal of, and adjust

19 to the status of an alien lawfully admitted for per20 manent residence, subject to the conditional basis

21 described in section 4, an alien who is inadmissible

22 or deportable from the United States, if the alien

23 demonstrates that—

24 (A) the alien has applied for relief under

25 this subsection not later than two years after

26 the date of enactment of this Act;
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1 (B) the alien has not, at the time of appli2 cation, attained the age of 21;

3 (C) the alien, at the time of application, is

4 attending an institution of higher education in

5 the United States (as defined in section 101 of

6 the Higher Education Act of 1965 (20 U.S.C.

7 1001));

8 (D) the alien was physically present in the

9 United States on the date of the enactment of

10 this Act and has been physically present in the

11 United States for a continuous period of not

12 less than five years immediately preceding the

13 date of enactment of this Act;

14 (E) the alien has been a person of good

15 moral character during such period; and

16 (F) the alien is not inadmissible under sec17 tion 212(a)(2) or 212(a)(3) or deportable under

18 section 237(a)(2) or 237(a)(4).

19 (2) PROCEDURES.—The Attorney General shall

20 provide a procedure by regulation allowing eligible

21 individuals to apply affirmatively for the relief avail22 able under this paragraph without being placed in

23 removal proceedings.

24 (b) TERMINATION OF CONTINUOUS PERIOD.—For

25 purposes of this section, any period of continuous resi-
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1 dence or continuous physical presence in the United States

2 of an alien who applies for cancellation of removal under

3 this section shall not terminate when the alien is served

4 a notice to appear under section 239(a) of the Immigra5 tion and Nationality Act.

6 (c) TREATMENT OF CERTAIN BREAKS IN PRES7 ENCE.—An alien shall be considered to have failed to

8 maintain continuous physical presence in the United

9 States under subsection (a) if the alien has departed from

10 the United States for any period in excess of 90 days or

11 for any periods in the aggregate exceeding 180 days.

12 (d) STATUTORY CONSTRUCTION.—Nothing in this

13 section may be construed to apply a numerical limitation

14 on the number of aliens who may be eligible for cancella15 tion of removal or adjustment of status under this section.

16 (e) REGULATIONS.—

17 (1) PROPOSED REGULATIONS.—Not later than

18 90 days after the date of the enactment of this Act,

19 the Attorney General shall publish proposed regula20 tions implementing this section.

21 (2) INTERIM, FINAL REGULATIONS.—Not later

22 than 180 days after the date of the enactment of

23 this Act, the Attorney General shall publish final

24 regulations implementing this section. Such regula25 tions shall be effective immediately on an interim
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1 basis, but are subject to change and revision after

2 public notice and opportunity for a period for public

3 comment.

4 SEC. 4. CONDITIONAL PERMANENT RESIDENT STATUS FOR

5 CERTAIN LONG-TERM RESIDENT STUDENTS.

6 (a) IN GENERAL.—

7 (1) CONDITIONAL BASIS FOR STATUS.—Not8 withstanding any other provision of this Act, an

9 alien whose status has been adjusted under section

10 3 to that of an alien lawfully admitted for perma11 nent residence shall be considered, at the time of ob12 taining the adjustment of status, to have obtained

13 such status on a conditional basis subject to the pro14 visions of this section.

15 (2) NOTICE OF REQUIREMENTS.—

16 (A) AT TIME OF OBTAINING PERMANENT

17 RESIDENCE.—At the time an alien obtains per18 manent resident status on a conditional basis

19 under paragraph (1), the Attorney General

20 shall provide for notice to such alien respecting

21 the provisions of this section and the require22 ments of subsection (c)(1) to have the condi23 tional basis of such status removed.

24 (B) AT TIME OF REQUIRED PETITION.—In

25 addition, the Attorney General shall attempt to
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1 provide notice to such an alien, at or about the

2 date of the alien’s graduation from an institu3 tion of higher education of the requirements of

4 subsection (c)(1).

5 (C) EFFECT OF FAILURE TO PROVIDE NO6 TICE.—The failure of the Attorney General to

7 provide a notice under this paragraph shall not

8 affect the enforcement of the provisions of this

9 section with respect to such an alien.

10 (b) TERMINATION OF STATUS IF FINDING THAT

11 QUALIFYING EDUCATION IMPROPER.—

12 (1) IN GENERAL.—In the case of an alien with

13 permanent resident status on a conditional basis

14 under subsection (a), if the Attorney General deter15 mines that the alien is no longer a student in good

16 standing at an accredited institution of higher edu17 cation, the Attorney General shall so notify the alien

18 and, subject to paragraph (2), shall terminate the

19 permanent resident status of the alien as of the date

20 of the determination.

21 (2) HEARING IN REMOVAL PROCEEDING.—Any

22 alien whose permanent resident status is terminated

23 under paragraph (1) may request a review of such

24 determination in a proceeding to remove the alien.

25 In such proceeding, the burden of proof shall be on
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1 the alien to establish, by a preponderance of the evi2 dence, that the condition described in paragraph (1)

3 is not met.

4 (c) REQUIREMENTS OF TIMELY PETITION FOR RE5 MOVAL OF CONDITION.—

6 (1) IN GENERAL.—In order for the conditional

7 basis established under subsection (a) for an alien to

8 be removed the alien must submit to the Attorney

9 General, during the period described in subsection

10 (d)(2), a petition which requests the removal of such

11 conditional basis and which states, under penalty of

12 perjury, the facts and information described in sub13 section (d)(1).

14 (2) TERMINATION OF PERMANENT RESIDENT

15 STATUS FOR FAILURE TO FILE PETITION.—

16 (A) IN GENERAL.—In the case of an alien

17 with permanent resident status on a conditional

18 basis under subsection (a), if no petition is filed

19 with respect to the alien in accordance with the

20 provisions of paragraph (1), the Attorney Gen21 eral shall terminate the permanent resident sta22 tus of the alien as of the 90th day after the

23 graduation of the alien from an institution of

24 higher education.
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1 (B) HEARING IN REMOVAL PROCEEDING.—

2 In any removal proceeding with respect to an

3 alien whose permanent resident status is termi4 nated under subparagraph (A), the burden of

5 proof shall be on the alien to establish compli6 ance with the condition of paragraph (1).

7 (3) DETERMINATION AFTER PETITION AND

8 INTERVIEW.—

9 (A) IN GENERAL.—If a petition is filed in

10 accordance with the provisions of paragraph

11 (1), the Attorney General shall make a deter12 mination, within 90 days, as to whether the

13 facts and information described in subsection

14 (d)(1) and alleged in the petition are true with

15 respect to the alien’s education.

16 (B) REMOVAL OF CONDITIONAL BASIS IF

17 FAVORABLE DETERMINATION.—If the Attorney

18 General determines that such facts and infor19 mation are true, the Attorney General shall so

20 notify the alien and shall remove the conditional

21 basis of the status of the alien effective as of

22 the 90th day after the alien’s graduation from

23 an institution of higher education.

24 (C) TERMINATION IF ADVERSE DETER25 MINATION.—If the Attorney General determines
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1 that such facts and information are not true,

2 the Attorney General shall so notify the alien

3 and, subject to subparagraph (D), shall termi4 nate the permanent resident status of an alien

5 as of the date of the determination.

6 (D) HEARING IN REMOVAL PRO7 CEEDING.—Any alien whose permanent resident

8 status is terminated under subparagraph (C)

9 may request a review of such determination in

10 a proceeding to remove the alien. In such pro11 ceeding, the burden of proof shall be on the At12 torney General to establish, by a preponderance

13 of the evidence, that the facts and information

14 described in subsection (d)(1) and alleged in the

15 petition are not true with respect to the alien’s

16 education.

17 (d) DETAILS OF PETITION.—

18 (1) CONTENTS OF PETITION.—Each petition

19 under subsection (c)(1)(A) shall contain the fol20 lowing facts and information:

21 (A) The alien graduated from an institu22 tion of higher education, as evidenced by an of23 ficial report from the registrar—

24 (i) within six years, in the case of a

25 four-year bachelor’s degree program; or
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1 (ii) within four years, in the case of

2 the degree program of a two-year institu3 tion.

4 (B) The alien maintained good moral char5 acter.

6 (C) The alien has not been convicted of

7 any offense described in section 237(a)(2) or

8 237(a)(4).

9 (D) The alien has maintained continuous

10 physical residence in the United States.

11 (2) PERIOD FOR FILING PETITION.—The peti12 tion under subsection (c)(1)(A) must be filed during

13 the 90-day period after the alien’s graduation from

14 a institution of higher education.

15 (e) TREATMENT OF PERIOD FOR PURPOSES OF NAT16 URALIZATION.—For purposes of title III of the Immigra17 tion and Nationality Act, in the case of an alien who is

18 in the United States as a lawful permanent resident on

19 a conditional basis under this section, the alien shall be

20 considered to have been admitted as an alien lawfully ad21 mitted for permanent residence and to be in the United

22 States as an alien lawfully admitted to the United States

23 for permanent residence.

24 (f) TREATMENT OF CERTAIN WAIVERS.—In the case

25 of an alien who has permanent residence status on a con-
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1 ditional basis under this section, if, in order to obtain such

2 status, the alien obtained a waiver under subsection (h)

3 or (i) of section 212 of the Immigration and Nationality

4 Act of certain grounds of inadmissibility, such waiver ter5 minates upon the termination of such permanent residence

6 status under this section.

7 (g) INSTITUTION OF HIGHER EDUCATION DE8 FINED.—In this section, the term ‘‘institution of higher

9 education’’ has the meaning given the term in section 101

10 of the Higher Education Act of 1965 (20 U.S.C.1001).

11 SEC. 5. GAO REPORT.

12 Six years after the date of enactment of this Act, the

13 Comptroller General of the United States shall submit a

14 report to the Committees on the Judiciary of the Senate

15 and the House of Representatives setting forth—

16 (1) the number of aliens who were eligible for

17 cancellation of removal and adjustment of status

18 during the application period described in section

19 3(a)(1)(A);

20 (2) the number of aliens who applied for adjust21 ment of status under section 3(a);

22 (3) the number of aliens who were granted ad23 justment of status under section 3(a); and
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1 (4) the number of aliens with respect to whom

2 the conditional basis of their status was removed

3 under section 4.

4 SECTION 1. SHORT TITLE.

5 This Act may be cited as the ‘‘Development, Relief, and

6 Education for Alien Minors Act’’ or the ‘‘DREAM Act’’.

7 SEC. 2. RESTORATION OF STATE OPTION TO DETERMINE

8 RESIDENCY FOR PURPOSES OF HIGHER EDU9 CATION BENEFITS.

10 Section 505 of the Illegal Immigration Reform and

11 Immigrant Responsibility Act of 1996 (Division C of Public

12 Law 104–208; 110 Stat. 3009–672; 8 U.S.C. 1623) is re13 pealed.

14 SEC. 3. CANCELLATION OF REMOVAL AND ADJUSTMENT OF

15 STATUS OF CERTAIN ALIEN HIGH SCHOOL

16 GRADUATES WHO ARE LONG-TERM RESI17 DENTS OF THE UNITED STATES.

18 (a) SPECIAL RULE FOR CERTAIN ALIEN HIGH

19 SCHOOL GRADUATES.—

20 (1) IN GENERAL.—Except as otherwise provided

21 in paragraph (2), notwithstanding any other provi22 sion of law, the Attorney General may cancel the re23 moval of, and adjust to the status of an alien lawfully

24 admitted for permanent residence, an alien who is in25 admissible or deportable from the United States, if the
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1 alien applies for such cancellation and adjustment of

2 status and demonstrates that—

3 (A) the alien has attained 12 years of age

4 prior to the date of enactment of this Act;

5 (B) the alien has not, prior to the date of

6 filing the application for cancellation of removal

7 and adjustment of status under this subsection,

8 attained the age of 21 years;

9 (C) the alien, prior to the date of filing an

10 application for cancellation of removal and ad11 justment of status under this subsection, has re12 ceived a certificate of graduation from a school

13 providing secondary education or the recognized

14 equivalent of such certificate;

15 (D) has maintained a continuous physical

16 presence in the United States for a period of not

17 less than 5 years immediately preceding the date

18 of enactment of this Act;

19 (E) the alien is a person of good moral

20 character; and

21 (F) is not inadmissible under section

22 212(a)(2) (8 U.S.C. 1182(a)(2)) or 212(a)(3) (8

23 U.S.C. 1182(a)(3)) or deportable under section

24 237(a)(2) (8 U.S.C. 1227(a)(2)) or 237(a)(4) (8
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1 U.S.C. 1227(a)(4)) of the Immigration and Na2 tionality Act.

3 (2) EXCEPTIONS.—

4 (A) REHABILITATION AND HARDSHIP TO

5 CERTAIN ALIENS.—Notwithstanding subpara6 graph (F) of paragraph (1), the Attorney Gen7 eral may cancel the removal of, and adjust to the

8 status of an alien lawfully admitted for perma9 nent residence, an alien (other than an alien

10 convicted of an aggravated felony, as defined in

11 section 101(a)(43) of the Immigration and Na12 tionality Act (8 U.S.C. 1101(a)(43)) or an alien

13 who is inadmissible under section 212(a)(3) (8

14 U.S.C. 1182(a)(3)) or deportable under section

15 237(a)(4) (8 U.S.C. 1227(a)(4)) of such Act) who

16 but for that subparagraph would qualify for can17 cellation of removal and adjustment of status

18 under this section if the alien demonstrates reha19 bilitation and that the alien’s removal will result

20 in exceptional and extremely unusual hardship

21 to the alien or a United States citizen or lawful

22 permanent resident spouse, parent, or child.

23 (B) ALIENS QUALIFYING BEFORE THE DATE

24 OF ENACTMENT.—Notwithstanding paragraph

25 (1), the Attorney General may cancel the re-
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1 moval of, and adjust to the status of an alien

2 lawfully admitted for permanent residence, an

3 alien if—

4 (i) the alien would have met the re5 quirements of paragraph (1) at any time

6 during the 4-year period immediately pre7 ceding the date of enactment of this Act;

8 and

9 (ii) the alien has graduated from, or

10 is, on the date of filing an application for

11 cancellation of removal under this sub12 section, enrolled in the United States in an

13 institution of higher education, as defined

14 by section 101 of the Higher Education Act

15 of 1965 (20 U.S.C. 1001).

16 (3) PROCEDURES.—

17 (A) IN GENERAL.—The Attorney General

18 shall by regulation establish a procedure that

19 permits aliens to apply for cancellation of re20 moval and adjustment of status available under

21 this subsection without being placed in removal

22 proceedings, except that, in addition, such can23 cellation of removal and adjustment of status

24 shall be available in removal proceedings. In the

25 case of an alien in an exclusion or deportation
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1 hearing, suspension of deportation on the same

2 grounds as are provided under this subsection for

3 cancellation of removal, together with adjustment

4 of status, shall be available.

5 (B) TREATMENT PRIOR TO GRADUATION.—

6 (i) IN GENERAL.—Notwithstanding

7 any other provision of law, an alien de8 scribed in clause (ii) may not be removed so

9 long as the alien continues to meet the cri10 teria of that clause.

11 (ii) COVERED ALIENS.—An alien de12 scribed in this clause is an alien who does

13 not meet the requirements of paragraph

14 (1)(C) but is otherwise able to demonstrate

15 prima facie eligibility for cancellation of re16 moval and adjustment of status under this

17 section and has a reasonable opportunity of

18 meeting all the requirements of cancellation

19 of removal and adjustment of status under

20 this section in the future.

21 (iii) WORK AUTHORIZATION.—The At22 torney General shall grant an alien de23 scribed in clause (ii) authorization to en24 gage in employment in the United States.
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1 (C) EXPEDITED PROCESSING OF APPLICA2 TIONS; PROHIBITION ON FEES.—Regulations pro3 mulgated under this paragraph shall provide

4 that applications for cancellation of removal and

5 adjustment of status under this subsection will be

6 considered on an expedited basis and without a

7 requirement for the payment by the applicant of

8 any additional fee for such expedited processing.

9 (4) CONFIDENTIALITY OF INFORMATION.—

10 (A) PROHIBITION.—Neither the Attorney

11 General nor any other official or employee of the

12 Department of Justice may—

13 (i) use the information furnished by

14 the applicant pursuant to an application

15 filed under this subsection for any purpose

16 other than to make a determination on the

17 application;

18 (ii) make any publication whereby the

19 information furnished by any particular in20 dividual can be identified; or

21 (iii) permit anyone other than a sworn

22 officer or employee of the Department of

23 Justice or, with respect to an application

24 filed under this subsection with a designated
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1 entity, that designated entity, to examine

2 applications filed under this subsection.

3 (B) PENALTY.—Whosoever knowingly uses,

4 publishes, or permits information to be examined

5 in violation of this subsection shall be fined not

6 more than $10,000.

7 (b) TERMINATION OF PERIOD OF CONTINUOUS PE8 RIOD.—For purposes of this section, any period of contin9 uous physical presence in the United States of an alien who

10 applies for cancellation of removal and adjustment of status

11 under subsection (a) shall not terminate when the alien is

12 served a notice to appear under section 239(a) of the Immi13 gration and Nationality Act (8 U.S.C. 1229) or any other

14 document notifying the alien of the initiation of immigra15 tion proceedings under that Act.

16 (c) TREATMENT OF CERTAIN BREAKS IN PRESENCE.—

17 An alien shall be considered to have failed to maintain con18 tinuous physical presence in the United States under sub19 section (a)(1)(D) if the alien has departed from the United

20 States for any period in excess of 90 days or for any periods

21 in the aggregate exceeding 180 days, except that an alien

22 may remain eligible for cancellation of removal and adjust23 ment of status under this section notwithstanding a failure

24 to maintain continuous physical presence in the United

25 States if the alien demonstrates that failure is due to excep-
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1 tional circumstances, as defined by section 240(e)(1) of the

2 Immigration and Nationality Act (8 U.S.C. 1229a(e)(1)),

3 or circumstances described in subparagraphs (A), (B), or

4 (C) of section 244(b)(1) of the Immigration and Nationality

5 Act (8 U.S.C. 1254a(b)(1)).

6 (d) STATUTORY CONSTRUCTION.—Nothing in this sec7 tion may be construed to apply a numerical limitation on

8 the number of aliens who may be eligible for cancellation

9 of removal under section 240A of the Immigration and Na10 tionality Act (8 U.S.C. 1229b).

11 (e) REGULATIONS.—Not later than 180 days after the

12 date of enactment of this Act, the Attorney General shall

13 publish regulations implementing this section. Such regula14 tions shall be effective immediately on an interim, final

15 basis, but are subject to change and revision after public

16 notice and opportunity for a period for public comment.

17 SEC. 4. ANNUAL REPORT.

18 Not later than one year after the date of enactment

19 of this Act, and annually thereafter, the Attorney General

20 shall submit a report to the Committees on the Judiciary

21 of the Senate and the House of Representatives and to the

22 Secretary of Education setting forth—

23 (1) the number of aliens who applied for can24 cellation of removal and adjustment of status under

25 section 3;
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1 (2) the number of aliens who were granted can2 cellation of removal and adjustment of status under

3 section 3;

4 (3) the number of aliens who applied for can5 cellation of removal and adjustment of status under

6 section 3 but whose applications were denied and the

7 basis for the denial of each application; and

8 (4) the number of pending applications for can9 cellation of removal and adjustment of status under

10 section 3.

Amend the title to read as follows: ‘‘A bill to amend

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State

residency for higher education purposes and to authorize

the cancellation of removal and adjustment of status of

certain alien high school graduates who are long-term

United States residents.’’.

Calendar No. 425

107TH CONGRESS

2D SESSION S. 1291

A BILL

To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit

States to determine State residency for highereducation purposes and to authorize the cancellation of removal and adjustment of status of certain alien college-bound students who are longterm United States residents.

JUNE 20, 2002

Reported with an amendment and an amendment to the

title