From a Dream to Reality Check: Protecting the Rights of Tomorrow's Conditional Legal Resident Enlistees

Author:Alison F. Atkins
Position:Judge Advocate, U.S. Army. Presently assigned as Chief, Criminal Law Division, 10th Mountain Division (Light Infantry), Fort Drum, New York. LL.M., 2012, The Judge Advocate General's Legal Center and School, Charlottesville, Virginia; J.D., 2007, Temple University, Beasley School of Law, Philadelphia, Pennsylvania; B.S., 2000, U.S. Military ...
Volume 216 Summer 2013
Once let the black man get upon his person the brass letter, U.S., let him
get an eagle on his button, and a musket on his shoulder and bullets in
his pocket, there is no power on earth that can deny that he has earned
the right to citizenship.1
I. Introduction
A. The Case of Private Robert Gonzales
Robert is part of the 1.5 generation.2 His parents, both
undocumented aliens, crossed the border from Mexico into the United
Judge Advocate, U.S. Army. Presently assigned as Chief, Criminal Law Division, 10th
Mountain Division (Light Infantry), Fort Drum, New York. LL.M., 2012, The Judge
Advocate General’s Legal Center and School, Charlottesville, Virginia; J.D., 2007,
Temple University, Beasley School of Law, Philadelphia, Pennsylvania; B.S., 2000, U.S.
Military Academy, West Point, New York. Previous assignments include Senior Trial
Counsel and Legal Assistance Attorney, 1st Armored Division, Wiesbaden, Germany and
Baghdad, Iraq, 2009–2011; Officer-in-Charge and Administrative Law Attorney, Patton
Legal Center, Heidelberg, Germany, 2008–2009; Student, Funded Legal Education
Program, Temple University, Philadelphia, Pennsylvania, 2004–2007; Battalion
Personnel Officer and Adjutant, 503d Military Police Battalion (Airborne), Fort Bragg,
North Carolina, 2003–2002; Platoon Leader, 65th Military Police Company (Airborne),
Fort Bragg, North Carolina, 2000–2002. Member of the bars of Pennsylvania, New
Jersey, the U.S. District Court for the Northern District of New York, the Court of
Appeals for the Armed Forces, and the Supreme Court of the United States. This article
was submitted in partial completion of the Master of Laws requirements of the 60th
Judge Advocate Officer Graduate Course.
1 Fredrick Douglass, Speech at National Hall (July 6, 1863).
2 See Roberto G. Gonzales, Wasted Talent and Broken Dreams: The Lost Potential of
Undocumented Students, IMMIGR. POLY IN FOCUS, Oct. 2007, at 2 (2007). Members of
States in 1986 when he was two years old. His father has steady work
installing sheetrock and his mother works as an occasional seamstress
and housekeeper.3 Both earn a paltry hourly wage with no employee
benefits.4 The Gonzales family lives together in a one-bedroom
apartment in Texas.5
Robert attended Texas public school from kindergarten. He is fluent
in English and Spanish and is poised to graduate in the top ten percent of
his class. He wants to attend college but knows his parents have little
tuition money.6 Further, because he is undocumented, he is not eligible
for federal student aid.7 Robert is steadfastly determined to help his
family have a better life and is desperate for a solution. He thinks the
Development, Relief, and Education for Alien Minors (DREAM) Act8
may be able to help him become a United States citizen. The DREAM
Act allows undocumented aliens like Robert to obtain conditional legal
residency that can transfer to permanent legal residency if he completes
the “1.5 Generation” are any first generation immigrant brought to United States at a
young age who were largely raised in this country. They are not the first generation
because they did not choose to migrate, but do not belong to second generation because
they were born and spent part of their childhood outside the United States. Id.
ILLEGAL IMMIGRANTS IN THE UNITED STATES 15 (2009) (noting that the top five
occupations for undocumented workers are in agriculture and construction.).
4 See id. at 16 (stating that low levels of education and low-skilled occupations lead to
undocumented immigrants having lower household incomes than either other immigrants
or United States born Americans); Ayelet Shachar, Earned Citizenship: Property
Lessons for Immigration Reform, 23 YALE J.L. & HUMAN. 110, 119 (2011) (citing
Gonzales, supra note 2, at 2) (discussing the emotional and financial struggles
undocumented individuals face).
5 See PASSELL & COHN, supra note 3, at 18. More than half of unauthorized immigrants
had no health insurance during all of 2007. Among their children, nearly half of those
were uninsured and 25% of those who were born in the U.S. were uninsured. Id.
6 See id. at 17. A third of the children of unauthorized immigrants and a fifth of adult
unauthorized immigrants live in poverty. This is nearly double the poverty rate for
children of U.S.-born parents (18%) or for U.S.-born adults (10%). Id.
7 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. §
1623(a) (2006) (prohibiting illegal aliens from receiving in-state tuition rates at public
institutions of higher education.).
8 Development, Relief, and Education for Alien Minors Act of 2011, S. 952, 112th Cong.
(2011) [hereinafter DREAM Act of 2011]. The complete text of the DREAM Act of
2011 is located at Appendix A. The Border Security, Economic Opportunity, and
Immigration Modernization Act, S. 744, 113th Cong. § 245D (2013), has been introduced
in the Senate and includes a version of the DREAM Act but will likely not pass in the
House of Representatives. Therefore, this article analyzes the DREAM Act of 2011,
which limits the conditional residency to a very select class of individuals and has a
higher likelihood of bipartisan support.
at least two years of work towards a bachelor’s degree in six years or
serves at least two years in the U.S. Armed Forces and is discharged
honorably, if at all.
Since college is a financial impossibility for Robert, out of a sense of
patriotism for the only country he knows, a desire to learn a marketable
skill, and a goal to be a productive, legal member of American society,
he enlists in the U.S. Army. Soon, Robert’s unit deploys in support of
contingency operations in the Middle East. During his deployment,
Robert proves to be a dependable, responsible young Soldier. However,
upon redeployment, he has difficulty readjusting and receives a citation
for driving under the influence. Further, he is involved in a drunken bar
fight with several of his squad members. His symptoms are indicative of
post-traumatic stress disorder (PTSD)10 but he neither he nor his leaders
recognize it as such. His Brigade Commander, who advocates a zero-
tolerance policy for substance abuse, separates him from the Army with a
General Discharge11 under the provisions of Chapter 14-12(b) of Army
Regulation (AR) 635-200, Active Duty Enlisted Administrative
Separations.12 Since Robert has been serving for fewer than six years, he
does not receive the benefit of an administrative separation board.13
Under the provisions of the DREAM Act, after the Army separates
Robert and without any appellate process for the separation, Robert loses
his status as a conditional legal resident. Robert is now an
undocumented alien facing an immigration judge at a removal
proceeding. At the proceeding, the only evidence the Government sets
forth before the immigration judge is the fact that Robert failed to meet
9 Dream Act of 2011, supra note 8, § 5(a).
10 What Is PTSD?, U.S. DEPT OF VETERANS AFFAIRS (Jan. 1, 2007), http://www.ptsd. what-is-ptsd.asp. There are four types of PTSD symptoms: (1)
reliving the event; (2) avoiding situations that remind the patient of the event; (3) feeling
numb, and; (4) feeling “keyed up” (hyperarousal). Additional problems include drinking
or drug abuse, feelings of hopelessness, shame, or despair, employment problems, and
relationship problems. Id.
5(a), 3-6(a), and 3-7(b)(1) (14 Dec. 2012) (RAR, 6 Sept. 2011) [hereinafter AR 635-200]
(establishing that a Soldier’s service at the time of separation may be characterized as
Honorable, General, or Other Than Honorable).
12 Id. para. 14-12(b) (authorizing the separation of a Soldier when the command
determines that he exhibits a pattern of misconduct).
13 Id. para.1-19(c)(2). A special court-martial convening authority may separate a
Soldier without using the separation board procedures under paragraph 14-12(b) if the
Soldier’s characterization of service is more favorable than other than honorable and the
soldier has fewer than six years of service. Id.

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