By Taher Kameli and Chathan Vemuri
In 2012, then-President Barack Obama provided a crucial piece of legal protection for residents who unlawfully arrived in the United States as children in the form of the policy known as the Deferred Action for Childhood Arrivals, or DACA.[1] By executive action, the president provided these residents (or “Dreamers”) a two-year shield from deportation despite not having citizenship or lawful permanent residence.[2] Under the DACA policy, these residents are able to obtain work permits, health insurance offered by employers, afford an education, and pursue higher education.[3] Depending on the state, Dreamers may also be able to qualify for in-state tuition, state-funded educational grants, loans, state-funded health insurance and even obtain drivers licenses.[4] However, having serious criminal histories (such as felony or serious misdemeanor conviction, or three convictions for any type of misdemeanor) disqualifies one from seeking the protections under DACA.[5]
Yet from the beginning, despite being backed by a majority of surveyed American adults[6], this policy has faced immense challenges from Republican politicians who seek tighter restrictions on immigration and what they see as unlawful immigrant’s “benefitting” from the system. The former Trump administration had long sought to end DACA as part of its push to restrict immigration to the United States, opposing former President’s Obama’s use of executive order to pass DACA.[7] Former President Trump was able to order the Department of Homeland Security to stop accepting new applications in 2017 but was unable to enforce his order to end renewals of the DACA program for previous recipients, which was reviewed and struck down by the U.S. Supreme Court for being an arbitrary and capricious policy under the Administrative Procedures Act (APA).[8] Yet opposition to DACA remains strong among the former president’s supporters and, in the absence of more formal legislation by the U.S. Congress, remains likely to be bogged down in litigation and debate.[9]
Yet lost in these discussions are the experiences and interests of those whom DACA seeks to protect in the first place. DACA was enacted to ensure that law abiding residents who were brought unlawfully as children were not punished for the alleged wrongdoings of their parents but were instead rewarded for their attempts to build successful lives in the United States by giving them a respite from the deportation process. However, as praiseworthy as DACA may seem, especially in light of the opposition to it from far right anti-immigration forces, it is far from sufficient in offering lasting protection to Dreamers. DACA at best offers a moratorium on deportation that lasts only two years, only to be renewed at the end of each two-year period. It provides no pathway to citizenship or any other type of protected legal status for Dreamers and simply works to defer deportation rather than provide long term protection for Dreamers. As of 2020, 640,000 undocumented immigrants have DACA protection.[10] According to a Pew research poll in 2017, two-thirds of DACA’s beneficiaries are aged 25 or younger and women are a plurality among them according to the USCIS.
[11] These are individuals who would be eligible for university and to contribute the nation’s economy with their educational backgrounds and learned skills. To allow such individuals who are only beginning their lives as adults to be left at such a legal disadvantage and excluded from a variety of jobs and benefits because of their status despite living in this country for most of their lives is not only immoral and unfair, it excludes a potentially productive sector of the population. It is both telling and disappointing that advocates for these Dreamers are fighting for a policy that at best defers them from being evaluated for deportation, rather than reward them with a permanent legal status. Protecting DACA is crucial yet it can never be a successful substitute for a more tangible legal status provided by the U.S. legislative process.
Furthermore, DACA is known to protect only those who are not linked to serious crimes. Yet the poverty and limited choices available to millions of young residents who have been in the United States since childhood makes them potentially excluded by DACA. Whatever one’s position on what they have done, their residence and experiences in the US should not make them any less protected by its laws compared to any citizen. To deny them that would be potentially discriminatory and naturalize a xenophobic narrative that links illegal immigration to crime, making membership in the US community conditional on a status that may not be available to everyone without means.
As of late, the current Biden administration has demonstrated its commitment to DACA by reinstating it early in his presidency[12], and has also expressed support for attempts by Democratic lawmakers to legalize millions of undocumented immigrants in spite of Republican opposition by way of a fast-track lawmaking process used for budget bills known as budget reconciliation.[13] Yet President Biden has also noted that DACA can never be a substitute for firm legislative action providing legal means by which Dreamers can obtain citizenship.[14] The temporary nature of DACA status renders it and the lives of Dreamers vulnerable to hostile legal challenges. Already, as of late, on July 16, 2021, the Biden administration has to contend with one of these challenges in the form of a Fifth Circuit District Court decision from Texas ruling that DACA is unlawful.[15]
The Biden administration plans to appeal this decision yet as President Biden and other observers note, this is a clear demonstration of how insufficient DACA is as a solution for millions of young adults who are still vulnerable to deportation despite living most of their lives in the United States.[16] That so much legal and political energy is spent defending such an inadequate measure for them is an outrage and testifies to how deeply flawed the American immigration system is.
Please contact the Kameli Law at info@kameli.com or please give us a call at (312)-233-1000 if you have any further questions about DACA.
[1][1] Giulia McDonnell Nieto del Rio and Miriam Jordan, What is DACA? And Where Does it Stand Now? N.Y. Times (Jul. 16, 2021) available at https://www.nytimes.com/article/what-is-daca.html
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] DACA Dreamers: What is This Immigration Debate All About?, BBC News (Nov. 12, 2019) available at https://www.bbc.com/news/world-us-canada-41128905
[7] Id.
[8] Dep’t of Homeland Security, et al. v. Regents of the University of California, et al., _ U.S. _, 21-26 (Jun. 18, 2020) available at https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
[9] Giulia McDonnell Nieto del Rio and Miriam Jordan, What is DACA? And Where Does it Stand Now? N.Y. Times (Jul. 16, 2021) available at https://www.nytimes.com/article/what-is-daca.html
[10] Dreamers By the Numbers FWD.US (Mar. 1, 2021) available at https://www.fwd.us/news/dreamers-by-the-numbers/
[11] Lopez, Gustavo, and Krogstad, Jens Manuel, Key Facts About Unauthorized Immigrants Enrolled in DACA, Pew Research Center (Sept. 25, 2017) available at https://www.pewresearch.org/fact-tank/2017/09/25/key-facts-about-unauthorized-immigrants-enrolled-in-daca/
[12] Executive Order: Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) WhiteHouse.gov (Jan. 20, 2021) available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/
[13] Karni, Annie, Biden Signals Support for Democrats’ Plan to Advance Immigration Changes Unilaterally, via a Budget Bill, N.Y. Times (Jul. 29, 2021) available at https://www.nytimes.com/2021/07/29/us/politics/biden-immigration-reconciliation.html
[14] Statement by President Joe Biden on DACA and Legislation for Dreamers, WhiteHouse.gov (Jul. 17, 2021) available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/17/statement-by-president-joe-biden-on-daca-and-legislation-for-dreamers/
[15] Treisman, Rachel, and Romo, Vanessa, The Biden Administration Vows to Appeal a Federal Ruling Deeming DACA Unlawful, Nat’l Pub. Radio (Jul. 17, 2021, 11:46 AM ET) available at https://www.npr.org/2021/07/16/987132269/federal-judge-rules-daca-unlawful-but-current-recipients-safe-for-now
[16] Id.
