'Loophole' that gave some 'dreamers' green cards could complicate DACA debate

Carlos Mundo and Dulce Hernandez were once among the 800,000 young undocumented immigrants temporarily shielded from deportation and granted work permits under former President Barack Obama's DACA program.

But while DACA recipients are now anxiously waiting to see if Congress passes legislation allowing them to stay permanently in the U.S. or whether they will once again face possible deportation, Mundo and Hernandez are home free. 

They are among a little-known but sizable group of nearly 40,000 DACA recipients who have already obtained green cards. Many of them were able to permanently legalize their status by taking advantage of a provision within Obama's Deferred Action for Childhood Arrivals program. The provision allowed DACA recipients to travel outside the U.S. and then return legally through what's known as advance parole, which made some DACA recipients eligible to get green cards, an opportunity that otherwise didn't exist for them.

Obtaining green cards allowed Mundo and Hernandez to get better jobs, showing how allowing DACA recipients to permanently legalize their status could benefit not only them but the country.  

But some critics, among them several Republican lawmakers in Congress, have labeled the advance parole provision a "loophole" they say improperly allowed some DACA recipients to exploit the immigration system to get green cards despite Obama's insistence that the DACA program did not provide a pathway to permanent legal status. 

Now as Republicans and Democrats in Congress battle over a deal to allow DACA recipients to permanently remain in the U.S., critics want to see the loophole closed.

"This was an abuse of the system and a real stretch of executive authority," said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a group that pushes for lowering all immigration into the U.S. "Congress is working on an immigration bill, and this is a rare opportunity to tweak the law and clarify what is permissible by the executive branch."

An immigration bill introduced Thursday by four House Republicans, among them House Judiciary Committee Chairman Bob Goodlatte and U.S. Rep. Martha McSally of Arizona, would close the "loophole" by allowing DACA recipients to receive contingency permission to stay in the U.S. but not allowing them to become eligible for green cards through advance parole.

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But Yasser Sanchez, a Phoenix immigration lawyer, said DACA recipients who got green cards did nothing wrong; they simply navigated the existing immigration system to legalize their status.

"It wasn’t so much a loophole but the application of the law," said Sanchez, who helped several DACA recipients obtain green cards, including Mundo.

How, for some, DACA led to a green card

The DACA program allowed young undocumented immigrants brought to the U.S. as children to receive work permits and temporary protection from deportation.

In addition, through a process known as advance parole, the program allowed DACA recipients to travel outside the U.S. for specific humanitarian and educational reasons — such as visiting a sick relative or to conduct academic research — and return legally, making it easier for them to receive a green card if they also met other qualifications such as having a U.S. citizen sponsor.

Here's how.

Under U.S. immigration law, immigrants who entered the country illegally can't apply for green cards unless they first leave the U.S., even if they are married to a U.S. citizen or have another U.S. citizen relative who can sponsor them.

But once they leave, immigrants who lived in the U.S. illegally are barred from returning for up to 10 years as punishment.

However, undocumented immigrants who originally entered the country legally on visas and then overstayed, can apply for green cards without first having to leave the country, if they are spouses of U.S. citizens or parents of adult U.S. citizens. That allows them to avoid the 10-year penalty.

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Advance parole, therefore, essentially allowed some DACA recipients who originally entered the country illegally to get green cards while avoiding immigration penalties, the same as those who had originally entered legally on visas.

However, receiving advance parole didn't automatically open the door for all DACA recipients to get green cards. That's because in order to get a green card, DACA recipients had to be married to a U.S. citizen or have another U.S. citizen relative or employer who could sponsor them.

An unintended pathway to citizenship

Since Obama created the DACA program in 2012 through executive action, a total of 800,000 people received DACA approvals.

Of those, 45,447 were approved for advanced parole, 39,514 have received green cards, and 1,056 have become U.S. citizens, according to U.S. Citizenship and Immigration Services data released by Senate Judiciary Committee Chairman Chuck Grassley, a Republican from Iowa who has been a fierce critic of the DACA program.

"The DACA program was never intended to provide a pathway to citizenship," Grassley said in September, days before the Trump administration announced the program was being phased out and gave Congress until March 5 to come up with a permanent fix.  

What is not known, however, is the exact number of DACA recipients who received green cards because of the loophole. USCIS has not released data showing how many DACA recipients got green cards through advance parole, how many got green cards who overstayed overstayed visas, and how many received advance parole but didn't get green cards.

"It's kind of like if you imagine a Venn diagram," said Julia Gelatt, senior policy analyst at the Migration Policy Institute, a nonpartisan think tank. "There are people who got advance parole but didn’t get green cards, there are people who got a green card and didn’t get advance parole, and then there is some overlap of people who got both advance parole and because of that advance parole could get a green card."

The Arizona Republic and the USA TODAY Network filed a Freedom of Information Act request for a detailed breakdown of DACA data but so far the agency has not provided it.

Vaughan at the Center for Immigration Studies believes that as many as half of the nearly 40,000 DACA recipients who got green cards did so through advance parole.

A 'cottage industry'

After the DACA program was created, some immigration lawyers began promoting advance parole as a way for DACA recipients to get green cards. News accounts showed university professors had created travel-abroad programs specifically aimed at helping DACA students get green cards through advance parole, Vaughan said.

The Press-Enterprise in Riverside, California, published an article in 2016 about professors at some Southern California universities taking students with DACA to study in Mexico, Vietnam and other countries with the added benefit that upon their legal return to the U.S. they might become eligible for green cards, provided they had a U.S. citizen relative who could sponsor them. 

"It's not true in all of these cases," Vaughan said, "but there definitely became this little cottage industry solely for the purpose of wiping out their illegal presence, their long period of illegal presence, which would normally block their adjustment of status. But because of this advance parole gimmick they were able to wipe out their illegality."

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Sarah Pierce, an immigration lawyer and associate policy analyst at the Migration Policy Institute, however, said she has seen no evidence of widespread abuse by DACA recipients who traveled to other countries through advance parole for dubious reasons.

She pointed out that advance parole is a provision that existed in immigration law before the DACA program was created to allow certain immigrants, such as those awaiting green cards, to travel temporarily outside the U.S. for humanitarian and other reasons and then return without facing immigration penalties that might otherwise have applied. 

In 2012, the same year the DACA program was created, the Board of Immigration Appeals ruled that traveling outside the U.S. through advance parole did not trigger immigration penalties barring undocumented immigrants from returning to the U.S. for up to 10 years, Pierce said.

"It’s not the advance parole in and of itself that allowed them to qualify for a green card," Pierce said. "It didn’t open a loophole.  It just made the process of applying a little bit easier. "

'It means the world to me'

Both Mundo and Hernandez said the main reason they applied for advance parole was to visit ailing relatives in Mexico, not to get green cards. Both originally entered the U.S. illegally.

Born in Guanajuato, Mexico's second-largest city, Hernandez, 22, came to the U.S. with her mother when she was just 20 months old, and grew up in Cathedral City, California.

Since she was a teenager, Hernandez dreamed of joining the military but couldn't because she was undocumented.

After being approved for the DACA program, Hernandez visited an Army recruiting office in Riverside but was told DACA recipients didn't qualify for the military unless they had specialized skills such as speaking Arabic, Russian, Chinese or Korean. Hernandez speaks Spanish, which is not among the languages sought by the military.

“What am I going to do now?” she recalls asking her mother, crying. 

After receiving DACA, Hernandez was granted advance parole to travel to Guanajuato to visit a sick uncle.

"He had a skin disease and doctors had given him two years to live," she said.

When she returned, her stepfather, a U.S. citizen, sponsored her for a green card, which she received shortly after her 20th birthday.

“It’s a relief,” she said of becoming a permanent resident. “You’re not scared anymore.”

The next month, she signed up for the Army, but a stress fracture on her hip prevented her from completing basic training. After taking classes at Mayfield College in Cathedral City, she now works as a medical assistant and plans to return to school to become an ultrasound technician.

“I’m not going to just get my green card and not do the most I can with it,” she said.

As for Mundo, he came to the U.S. with his family when he was 5, and grew up in Mesa, Arizona. He was approved for DACA in 2013. In 2016, he applied for advance parole to travel to Mexico to visit sick grandparents in Choix, Sinaloa, his birthplace. 

"My grandpa had a heart attack and he’s not able to travel anymore and my grandmother was diagnosed with stomach cancer," Mundo said.

Sanchez, his lawyer, advised Mundo that when he returned he would become eligible for a green card because he was already married to a U.S. citizen. The couple have three children born in the U.S., making them citizens of this country, ages 12, 7 and 9 months.

He received his green card about six months later.

"It means the world to me," Mundo, 31, said. With a green card, Mundo was able to get a commercial driver's license, and subsequently, a good-paying job working for a beer distributor.

Now, he said, "I am able to provide for my two daughters and my wife, and to advance in my career of choice. I am able to really not have to worry about getting deported and getting pulled over. Pretty much it’s a huge weight off my shoulders."

Mundo, however, said it's "bittersweet" getting his green card while most of the other 800,000 people who received DACA remain in limbo as Congress debates a way for them to stay permanently in the U.S.

Among them is his sister, 34-year-old Claudia Mundo. She also was approved for advance parole to visit their sick grandparents in Mexico. But unlike her brother, she is not married to a U.S. citizen — her husband is undocumented, and although the couple have two U.S. citizen children, she is not eligible to legalize her status.

"I am happy for him," Claudia said of her brother's green card. "At least he is not going through the same situation that I am."

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