ANALYSIS: With Undocumented Status Revealed, Eric Balderas Faces Legal Challenges

The case of Eric Balderas '13, an undocumented student facing possible deportation to Mexico, has sparked conversation about his years spent living in the shadows and has brought to the fore the debate over proposed legislation that would grant citizenship to illegal immigrants.

In the past, Balderas used his Mexican passport as sufficient identification to board domestic flights. But having lost his passport that weekend, he tried to board a plane from his hometown of San Antonio, Texas to Boston last Monday with his Mexican consulate card and Harvard identification instead—prompting the attention of immigration officials who soon discovered Balderas’ undocumented status.

In the days following the news of his detainment and possible deportation to Mexico, Balderas has publicized his support for legislation that he views as one of his few lifelines to remain in the United States: the Development, Relief and Education for Alien Minors Act, or the DREAM Act, which would potentially offer a six-year-long conditional path toward U.S. citizenship.

Balderas’ supporters have been rallying behind the DREAM Act and providing reasons he should be permitted to stay in the United States—but those who believe that Balderas should be deported to Mexico have raised their voices as well.

BLIND TO CITIZENSHIP

Balderas’ recent uncovering as an illegal immigrant has provoked some to wonder how he has been able to live in the shadows for so long.

At Harvard, where 20 percent of the students are from outside the United States, a student’s nationality does not play a role in admissions decisions.

“There is no citizenship requirement at Harvard,” said Kevin Galvin, director of news and media relations. “The University admits qualified students from all around the globe, and we believe that the diversity of talent and experience which our students bring augments the teaching and educational experience at Harvard.”

University President Drew G. Faust has advocated for the DREAM Act, writing a letter to Mass. Rep. Michael E. Capuano in May 2009 and meeting with recently elected U.S. Senator Scott P. Brown in part to urge him to support the DREAM Act.

According to Shu Ohno, deputy director of communications for National Immigration Forum, no one is obligated to tell the government or even question anyone else about his or her legal status unless that individual is seeking employment.

After acceptance into an American college, international students generally apply for F-1 student visas to gain entry into the United States. But undocumented students who were accepted from within the United States—like Balderas—are not eligible for the student visa, which requires a permanent residence abroad and no intention to leave that residence.

Ohno said that Balderas would have had to return to Mexico and apply for a student visa, upon which he would be barred for 10 years by the U.S. government due to existing records of his illegal residence in the United States.

Even if Balderas were to fulfill the 10-year-miniumum bar, the chances of an actual return would be slim—as a result, Ohno, a proponent of the DREAM Act, said he believes that Balderas should be allowed to stay in the country.

“We’re taking one of our best and brightest in the country and potentially kicking him out of the country for no good reason,” Ohno said. “When you think about the loss to the family, community, to the university...throwing him out of the country—it’s irrational.”

‘RULE OF LAW’

But opponents of the DREAM Act contend that the legislation enables the government to reward those who have committed a crime by illegally entering the country or overextending their stay.

In that vein, the Federation for American Immigration Reform—a national organization that seeks to improve border security and stop illegal immigration—opposes the proposal, viewing it as a “classic example of a mixed message,” according to FAIR spokesman Ira H. Mehlman. The DREAM Act, he said, seems to tell illegal immigrant parents, “Don’t come here, but if you do, your kids will be rewarded.”

Balderas—who said he cannot remember ever not speaking English—was only 4-years-old when he immigrated to the United States from Mexico with his family to escape domestic violence. Balderas' supporters argue that undocumented youth like him did not have a say in choosing to break the law when crossing into the United States.

But Jim Gilchrist, founder and president of the immigration law enforcement advocacy group Minuteman Project, said that if the United States is to be governed by the rule of law, the rule of law must not exempt any individual.

With approximately 11 million illegal aliens in the country and 25 million legal residents who are unemployed, illegal immigration amnesty creates more competition for jobs, according to Roy H. Beck, president of Numbers USA, an immigration reduction group that is not anti-immigration, legal or illegal. In addition, granting amnesty to illegal immigrants encourages chain migration.

“There’s no question that [Balderas] and students like him are in a difficult situation, but it is a situation of his parents’ making,” Mehlman said. “When parents violate the immigration law, somehow society has to deal with the consequences.”

Though Beck said he believes that students like Balderas need a legal remedy for their undocumented status, he added that the remedy has to create as small a negative impact on the legal residents in the United States as possible—which the DREAM Act, as currently proposed, would not provide.

For one, Beck said, the amnesty would create incentives for more people to break the law, and people who did break the law—the parents who brought over their children—should not be able to benefit from the amnesty.

In the aftermath of Balderas’ detainment on Monday, friends and activists of immigration reform have rallied to his defense, highlighting the former valedictorian’s academic prowess and arguing that his deportation would stand a loss to American society—particularly given his interest in becoming a cancer researcher.

But Gilchrist said that there is “no carte blanche” for breaking the law—even for Balderas, who is “obviously a brilliant young man.”

“We can’t have one set of rules for smart people and one set of rules for stupid people,” Mehlman said.

As a consequence of the rule of law, Gilchrist said that Balderas must be repatriated and apply for re-entry at the appropriate time.

“Not to hold that position would be to say that the rule of law is meaningless.” Gilchrist said. “It’s a sorry story for Senor Balderas, but it’s a good story for the rule of law.”

—Staff writer Xi Yu can be reached at xyu@college.harvard.edu.