To Dream the Impossible Dream…

On September 5, 2017, President Trump ordered an end to DACA, the Obama-era program that shields young undocumented immigrants from deportation. President Trump called DACA, the Deferred Action for Childhood Arrivals, an “amnesty-first approach.”  He urged Congress to pass a replacement before his administration begins phasing out DACA’s protections in 6 months.

The DREAM Act (Development, Relief, and Education for Alien Minors Act) was a bipartisan bill first introduced in Congress by Senators Durbin and Hatch in 2001. The original DREAM Act was created to assist individuals who originally entered the United States as children, without documentation or permission. These individuals grew up in the United States and often did not discover they were undocumented until applying for driver’s licenses or attempting to go to college. These “Dreamers” considered themselves Americans, but without a legal status they were often relegated to working in low wage jobs and prevented from seeking better opportunities.

The DREAM Act would have granted a pathway to permanent residence and eventually citizenship for the young Dreamers. Americans have overwhelmingly supported immigration reform for the past two decades, but Congress failed to pass the DREAM Act and subsequent proposed versions of the bill. In 2012, President Barack Obama addressed the young undocumented population by creating DACA  via an executive order.

DACA has allowed approximately 800,000 young immigrants to remain in the country if they arrived to the U.S. before 2007. In order to be approved, applicants must not have serious criminal histories and must have arrived in the country when they were under the age of 16. Successful DACA recipients are authorized to live and work in the U.S. for two year periods, which was renewable until the Trump administration’s announcement earlier this week.

In a press conference last Tuesday, Attorney General Jeff Sessions called DACA “an unconstitutional exercise of authority” and announced the program would be ending. A statement released by Acting DHS Secretary Elaine Duke confirmed that applications filed before Tuesday would be adjudicated on a case-by-case basis but no new applications will be accepted. Individuals currently approved for DACA, but who expire before March 5, 2018 can still apply for a renewal before October 5, 2017.

In that press conference the Attorney General was incorrect in stating that the DACA program provided legal status for recipients and had the effect of unilateral executive amnesty. DACA recipients were not given any legal status, but in the interest of managing resources by prioritizing deportations, the executive order effectively put DACA recipients in the back of the deportation line. This gave Immigration and Customs Enforcement the ability to focus their deportation efforts on those who have committed serious crimes, thereby, “deferring any deportation action.” DACA granted the recipients legal presence, but legal presence is distinctly different from legal status. As outlined in the U.S. Citizenship and Immigration Services website:

“An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect, however, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.”

Moreover, there was no amnesty granted. Amnesty is defined as a forgiveness of past offenses, but there were no offenses forgiven. You are not eligible for a DACA benefit if you committed a serious crime, therefore no criminal offenses were forgiven. The DACA recipients are not afforded any legal status, therefore their status infraction that was directly a result of their parents’ transgressions, was also not forgiven. Where there is no forgiveness for a past offense, there is no amnesty.

The Attorney General further stated that DACA contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences, denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens, and granted recipients “participation in the Social Security program.”

If DACA was the reason for the increase in the number of unaccompanied minors entering the U.S., then the swell should start after DACA was announced in late 2012. Therefore, if DACA prompted a spike in the number of unaccompanied minors, that should show up in the data starting in 2013. However, the data on apprehensions at the southwest border published by the U.S. Customs and Border Patrol shows that the slope of the increase is consistent from 2011 to 2014, after which it fell. (It’s also less than a third of the level it was in 2000).

In August 2016, a Congressional Research Service report concluded that gang-related violence, poverty, and lack of educational and employment opportunities in Guatemala, El Salvador, and Honduras played a key role in children’s decisions to leave their homes on their own and cross illegally into the United States.

There is also no evidence to show that DACA recipients are taking jobs from U.S. workers and some experts claim that this view ignores the contributions to the economy and the jobs immigrants help to create. Fortune magazine recently reported that “the United States could lose up to 700,000 jobs and suffer billions of dollars in lost economic output if President Donald Trump ends the program granting work permits to the children of undocumented immigrants.” The report also “estimated that the loss of those workers could cost the country $460.3 billion in economic output over the next decade, with Medicare and Social Security contributions dropping by $24.6 billion.”

The Attorney General’s statement that DACA recipients were allowed “participation in the Social Security program.” is a mischaracterization.  DACA recipients were granted temporary periods of work authorization and therefore they are required to make the requisite Social Security contributions when working. However, notwithstanding the fact that these young adults are far from retirement age, they were not given a path to permanent residence or citizenship, so they may never benefit from the Social Security program.

The Trump administration has decided to end DACA over a 6 month period, stating that Acting Secretary Duke will “initiate a wind down process” that “will enable DHS to conduct an orderly change and fulfill the desire of this administration to create a time period for Congress to act – should it so choose.” President Trump assured DACA recipients via a series of tweets that “no action” would be taken during the 6 month period and that he will revisit the issue if Congress can’t “legalize DACA.”

In July, a bipartisan group of senators proposed the DREAM Act, or the Development, Relief, and Education for Alien Minors Act. This bill would provide a path to U.S. citizenship for undocumented individuals, DACA recipients, and certain individuals with temporary protected status, who graduate from U.S. high schools, attend college, enter the workforce, or enlist in the military. Congress has approximately 6 months to create a solution for expiring DACA recipients or the U.S. risks potential negative impacts on the economy and increased uncertainty for employers, universities, and others. We will continue to monitor the progress in the legislative branch, as well as announcements from the White House and decisions from the courts as DACA winds down and alternative solutions are proposed. Perhaps the time might come when the Dreamers may finally fulfill the American dream with a path to citizenship through the DREAM Act of 2017, if enacted.

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