Stop Using Dreamers as a Political Pawn
“The dream is free, but the hustle is sold separately” is a perfect idiom for Dreamers — the 800,000 still-undocumented immigrants brought into the United States as children. Their parents bought into the vision of the “shining city on the hill” and the American dream sold to the world. They took us at our word: “Give me your tired, your poor, your huddled masses yearning to breathe free.” It is little wonder, then, that many fled here to leave behind the dangerous and destitute conditions in their respective home countries — some of which, lest we forget, were created by U.S. foreign policy.
The DREAM Act, introduced in Congress in August 2001, sought to provide a pathway to legal status for such undocumented youth brought into the country — or who remained beyond their authorized stay — through no fault of their own. Despite 19 years of legislative wrangling and multiple revisions, the DREAM Act has never passed. Its latest iteration, introduced in 2019 (H.R. 6), passed a Democratic House, but still languishes in the Republican-controlled Senate. Which is why, on June 15, 2012, former President Barack Obama had exercised his constitutional authority to issue a temporary reprieve for these undocumented youth via executive order, initiating the Deferred Action for Childhood Arrivals (DACA) program.
Last month, the U.S. Supreme Court ruled that the Trump administration wrongly ended DACA, thereby allowing the program to remain in place, at least temporarily. This was a significant victory for Dreamers, whose futures have been uncertain since President Donald Trump assumed office. The Supreme Court ruled that those who had already been approved for the program would be able to renew their DACA status for another two years. However, the decision did not apply to first-time applicants, who had been shut out of the program since September 5, 2017, when Trump rescinded it.
That changed last Friday. U.S. District Court Judge Paul W. Grimm ruled that the Trump administration’s rescission of the DACA program was “arbitrary and capricious,” and that the administration must begin accepting new applicants for the program.
As an immigration attorney based in South Florida, I have assisted numerous Dreamers with their DACA applications. I have also participated in conversations with those — privileged to have been born in the United States — whose stance toward DACA, and U.S. immigration policy as a whole, is based on blatant ignorance. This is not a judgment, simply a fact. Even as a first-generation American, I, too, had little understanding of the highly complex nature of immigration law and policy until I dived head-first into the deep as a newly barred associate at my firm. Therefore, I now engage in such conversations with a sense of humility, aiming not only to dispel inaccuracies but also to provide information that better informs positions and judgments on these issues.
So, let’s clarify a few things, shall we?
DACA does not confer amnesty nor “legal” status. DACA was instituted by Obama to provide temporary protection from deportation for certain undocumented immigrants, brought to the United States as children. It allows them to remain in the country with their families, which in many cases include their own U.S. citizen spouses and children. To be eligible for DACA, applicants must meet several guidelines: they must have entered the United States before their 16th birthday, continuously resided in the United States since June 15, 2007 through the present time, and been under the age of 31 as of June 15, 2012.
DACA does not provide a path to permanent residence and U.S. citizenship. I can’t tell you how many times I’ve heard, “They’ve been here for so long. If they’re truly worried about being deported, why haven’t they bothered to become citizens?” The short answer: Legally, they cannot. DACA recipients are granted an employment authorization document, valid for two years, which allows them to obtain a driver license and social security number, work legally, and attend college. That’s it. To maintain their DACA status, recipients must renew their applications every two years. Their only options for permanent residence — and eventual citizenship — while they live within the United States would be through a good-faith marriage to a U.S. citizen, or a U.S. citizen child age 21 or older. Neither of these options derive from DACA status.
As an aside, there are approximately 10 to 12 million undocumented immigrants in the United States. Depending on their situation, the immigration process can be exhaustively long, daunting, and prohibitively expensive due to government filing and attorney fees. Many have been trying to resolve their immigration status for years. The notion that they just “don’t want to become citizens” is mere propaganda and disinformation.
DACA recipients are not “very tough, hardened criminals.” Such assertions made by the president — and repeated by his followers — are patently false. Those who have committed a felony, significant misdemeanor, three or more minor misdemeanors, or who otherwise pose a threat to public safety or national security are, in fact, ineligible for DACA. An applicant must also be enrolled in high school, or have either graduated or obtained a certificate of completion (or GED). Some DACA recipients, in fact, enhance our national security. Hundreds of them serve in the armed forces and, upon completion of service, must be honorably discharged to remain eligible for DACA.
DACA recipients are not a drain on our economy. To say otherwise is to be misinformed. Because DACA recipients are granted work authorization, they are legally required to pay taxes on their income — like everyone else. As of September 2019, DACA recipients contributed $5.7 billion in federal income taxes and $3.1 billion in state and local taxes — actually providing benefits to Americans since they themselves do not qualify for most federal and state benefits. They do not qualify for food stamps, Social Security, Medicaid, or to purchase insurance in the Health Insurance Marketplace. They receive no federal tax credits to make private insurance more affordable, even though they contribute an annual $470 million in Medicare and $2 billion in Social Security taxes. Moreover, they are ineligible for federal financial aid for college, even though they are allowed to attend. And although many have paid their fair share of state taxes, only 20 states allow DACA recipients within their state to pay the lower cost of in-state tuition, vis-à-vis the higher cost that would be paid by out-of-state residents. Furthermore, DACA recipients pay $613.8 million in mortgage payments annually and $2.3 billion in rental payments, which contributes equity to other people’s financial holdings.
DACA is constitutional. Article 2, Section 3 of the U.S. Constitution requires the president to ensure that the laws be faithfully executed. Inherent in that responsibility lies the discretion regarding how to do so. Within the context of immigration law, finite resources must be prudently allocated to execute immigration policy. This would include a determination regarding who should be targeted for deportation and who should be permitted to remain temporarily. Through 8 U.S. Code § 1103, Congress has also used its constitutional power to confer upon the executive branch “the administration and enforcement of…all other laws relating to the immigration and naturalization of aliens…” (Emphasis added). Since the passage of the Immigration and Nationality Act (“INA”) of 1952, as amended, the Department of Homeland Security — an agency of the executive branch — has had explicit authority to remove aliens from the United States or grant them temporary relief through prosecutorial discretion, often for humanitarian reasons. DACA merely extended that discretionary relief to young undocumented immigrants who meet certain federal criteria.
In June 2012 — the same month that DACA was instituted — the U.S. Supreme Court in Arizona v. United States (641 F. 3d 339) clarified the constitutional responsibility of the executive branch to exercise discretion in carrying out our immigration laws:
“Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.
Despite these recent victories in the courts over the past month, the future of DACA is still uncertain. Trump may resubmit a petition to the U.S. Supreme Court based on the specifications outlined in their prior ruling. He may try to work a deal with Congress, using DACA recipients as pawns to advance a quid-pro-quo agenda. Meanwhile, 800,000 lives still hang in the balance. Should Trump’s efforts be successful, they would no longer be lawfully employed. No longer contributing to tax revenue. No longer able to renew their driver licenses. Once again, they would be relegated to living in the shadows of America while U.S. Immigration and Customs Enforcement (ICE) pursues them for deportation.
For several years now, the state of Dreamers in America has been a reflection of the partisan political turmoil within this country. In November, we have another opportunity to restore dignity to people who are already an integral, contributing part of our society. From my professional experience, these young people are smart, hard-working, and ambitious. Many Dreamers do not disclose their status beyond a need-to-know basis, but it is likely that you, too, have gone to school with, worked alongside, or attended religious services in the company of a Dreamer. You might have been treated medically by a Dreamer. Your child’s favorite first grade teacher might be a Dreamer. Likely, you would be proud if one was your son or daughter, brother or sister.
Our country has already put immigrant children in cages. With Covid-19, systemic racism, and xenophobia wreaking havoc on our families, let us not commit further injustice. We must elect leaders who defend DACA and, ultimately, provide a pathway to citizenship for these young people through the DREAM Act. Dreamers have “hustled” enough.