The US Humanitarian Border Emergency, Part Four
Global headlines about the US-Mexico border crisis center on the loudest voices – the human rights groups expressing outrage over family separations, Congresswoman Alexandria Ocasio-Cortez calling detention facilities concentration camps, and President Donald Trump repeatedly referring to undocumented immigration as an “invasion”.
However, a second debate, usually occurring at lower volume, occasionally surfaces and becomes entangled with the arguments over asylum laws, undocumented workers and detention practices. At the center of this quieter (but no less contentious) dispute are the implications of a policy referred to as DACA, and the fate of a unique group of immigrants who have come to be known as the “Dreamers”.
In brief, Dreamers are undocumented immigrants who arrived in the US as children; most were brought to the country by their parents. Many of them came to the US at a young enough age that they speak English as their primary language, and speak it with a US accent. And as one of them demonstrated with a viral video of his high school graduation valedictory speech, they are far from the image of undocumented migrants as rapists and drug dealers put forth by Trump:
A generation caught between the lines
As The Millennial Source previously reported, although the US public is deeply divided over immigration issues, a strong majority of citizens oppose both family separation and widespread deportation of migrants who were brought to the US as children. After legislative attempts to permanently protect Dreamers from these fates failed, the Obama Administration created DACA as a stopgap measure. However, the policy does nothing to resolve Dreamers’ long-term status.
The question of what will become of Dreamers now highlights the historical crossroads at which the US finds itself with respect to the treatment of both migrant workers and refugees seeking asylum. Many Dreamers have grown up straddling a generational immigration divide: they bear the classification “illegal” because their parents entered the US without authorization, yet often have younger siblings who enjoy all the privileges of US citizenship.
What birthright citizenship is, and why the US has it
Whereas Dreamers came into the US after beginning life elsewhere, their families often include other children who were born on US soil. The 14th Amendment to the US Constitution confers citizenship upon those younger children, a practice known as birthright citizenship, or jus soli. Trump has often echoed a favorite conservative talking point by attacking this practice, calling the concept “ridiculous”:
At one point, Trump even asserted that the US is the only major country to have birthright citizenship. In reality, well over 30 countries worldwide have some form of jus soli, including over 85% of countries in the Americas. The Millennial Source has spoken with several US residents who were born of US-citizen parents living abroad in Mexico, Canada or Central or South America. The combination of US laws and the jus soli laws of their countries of birth qualify them for dual citizenship.
When the 13th Amendment to the US Constitution ended slavery – “America’s original sin” – there remained the question of what rights freed slaves would have. By drafting the 14th Amendment, sometimes referred to as the “Equal Protection” amendment, the US sought to establish that former slaves, as US citizens, were entitled to the same rights as any other legal US resident. The amendment begins,
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”
Ordinarily, a constitutional amendment in the US can only be overturned through the adoption of a new amendment that negates it – something that has only occurred once in the 231-year history of the US Constitution. However, Trump has claimed that he has the authority to end birthright citizenship without amending the constitution, and has suggested that he might do so either through an executive order or a court battle.
At the heart of Trump’s argument against birthright citizenship is a claim that the 14th Amendment does not apply to illegal immigrants, because they are not “subject to the jurisdiction” of the US. However, if any branch of US law enforcement takes action against a person, whether by ruling on the person’s immigration status or fining them for speeding, then the person has at that moment become subject to US jurisdiction. For this reason, most legal scholars reject Trump’s assertion.
It bears mentioning that his resistance to jus soli is not the first major instance of Trump questioning the citizenship of US-born children. In 2011, he became a leading voice for the “birther” conspiracy theory, which held that Barack Obama was not legally eligible to serve as US president because he was born in Kenya or some other non-US location. (Obama was in fact born in the US state of Hawaii, as his birth certificate shows.)
Regardless of Trump’s views, however, birthright citizenship does complicate immigration policy in the US. Children born in the US live in constant fear of the deportation of their undocumented parents, while Dreamers face the triple threats of deportation along with their parents, watching their parents get deported while they are allowed to stay in the US with undetermined status, or being deported separately from their parents, leaving their citizen younger siblings behind as orphans.
At least three times since the year 2000, the US Congress has attempted to resolve this Dreamer dilemma legislatively. Every time, the effort has failed.
The DREAM Acts of 2001, 2007 and 2011
Senator Orrin Hatch, a Republican from Utah, first introduced the Development, Relief, and Education for Alien Minors (DREAM) Act on the US Senate floor in 2001. Primarily, the bill was intended to remove obstacles that prevented law-abiding undocumented children from attending US colleges and universities.
The act’s title overtly referenced the American Dream – a binding belief in US culture that anyone, regardless of background, can achieve success in the country through hard work. However, the American Dream did not become reality in 2001 for immigrants who had come to the US as children. Hatch’s bill stalled in the Senate and never became law.
In 2007, Senator Dick Durbin, a Democrat from Illinois (whose fellow Illinois senator at the time was Obama) put forth a new and broader DREAM Act for the Senate’s consideration. The act proposed to “cancel the removal” (deportation) of many undocumented immigrants who had arrived in the US as children, and grant them “conditional permanent [legal] resident status.”
In order to qualify for this change of status, immigrants had to meet a number of requirements, including:
- arrival in the US at least five years prior to enactment of the law, and before their 16th birthday
- current age of 29 years or younger
- graduation from high school and/or acceptance into a university or other institution of higher learning
Since the bill would have granted permanent resident status to many children of undocumented parents, it would have effectively opened up a path for Dreamers to become citizens.
Like its predecessor, the 2007 DREAM Act never made it through the US Congress. Senator Durbin tried once again with a very similar DREAM Act in 2011, but it met with the same fate. Although all three bills failed, their titles inspired the Dreamers nickname that many young US immigrants now embrace.
By 2012, it was clear that no DREAM Act would be enacted during the Obama presidency. Faced with this reality, as one report stated it, Obama made the fateful decision to “go it alone” in the fight to protect Dreamers.
The birth of DACA and subsequent expansion attempts
Under instructions from Obama, US Secretary of Homeland Security Janet Napolitano issued an official memo to immigration enforcement agencies on June 15, 2012. The subject line of the memo reads, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”. However, the policy Napolitano outlined would soon be known by a name that does not appear in the memo: Deferred Action for Childhood Arrivals, or DACA.
The stated purpose of the memo was to prevent or pause “removal actions” (deportation) for certain “low priority individuals”. Napolitano laid out the conditions that undocumented immigrants had to meet in order to qualify as “low priority”. These criteria essentially matched those specified in the 2007 DREAM Act, with the exception that the requirement of high school graduation or acceptance by a higher learning institution was softened to include any current school enrollment, or current or completed service in the US Armed Forces.
Under the DACA policy, those who met the criteria could voluntarily come forward and identify themselves to enforcement agencies, and apply for legal authorization to work in the US. To date, roughly 800,000 Dreamers have been granted DACA protection from deportation; it is estimated that as many as one million more immigrants meet the criteria for such protection.
As its name makes clear, DACA is a policy of deferred immigration enforcement action, not permanent cancellation of any potential action. While Dreamers whose applications are accepted can legally work in the US, including obtaining a driver’s license and social security number, they do not gain the permanent resident status that the 2007 and 2011 DREAM Acts would have conferred upon them. Nor does DACA provide a path to citizenship.
In short, DACA protection puts Dreamers in immigration limbo: they do not face a present threat of deportation as long as the program continues, but they cannot be certain that such a threat does not lurk in their futures. In effect, in the eyes of the law, they are not “illegal” immigrants, but also not quite not illegal.
In 2014, Obama sought to greatly expand DACA by extending the programs’ protection to undocumented immigrants whose children are US citizens or have legal resident status. According to the White House’s own estimates, as many as 5 million immigrants would have qualified to remain in the US and legally register to work under the initiative, known as DAPA (Deferred Action for Parental Accountability).
Whereas DACA originally came into being as a departmental policy of setting law enforcement priorities, Obama attempted to implement DAPA by executive order. Like laws enacted by Congress, presidential are subject to judicial review. In February 2015, a Federal District Court blocked implementation of DAPA, along with several other proposed DACA expansions. Hence, only the original DACA memo remained in effect when Obama left office in January 2017.
President Trump’s attempts to end DACA
Just nine months after taking office as president, Trump responded to pressure from the attorney generals of 10 US states by terminating the DACA program. The decision exposed 800,000 registered Dreamers, valedictorians and all, to potential deportation:
However, like Obama’s prior attempts to expand the program, Trump’s order to end DACA was challenged in the courts. From January through April 2018, three US Federal District Court judges ruled that the Trump Administration had inappropriately cancelled the program without sufficient justification. The courts issued an injunction preventing the DACA cancellation, and immigration enforcement agencies resumed accepting DACA renewal applications.
When a upheld these judicial decisions in November 2018, Trump’s only recourse was to take his case to the Supreme Court. In January 2019, the Supreme Court announced that it would decline to hear the DACA termination case during its 2019 session.
As a result of this legal stalemate, an uneasy status quo has held throughout 2019. Registered Dreamers remain protected, but US Citizen and Immigration Services (USCIS) refuses to accept new applications for the DACA program. And in a potential victory for the Trump Administration, the Supreme Court agreed in June 2019 to consider the DACA case during its next session, which likely means a ruling in the spring of 2020.
Constitutionality arguments about DACA
One of the reasons that the Trump Administration has faced an uphill battle in the courts is that while executive orders are inherently subject to judicial review, memos outlining law enforcement priorities are generally not. Article Two of the US Constitution gives the president broad power to “faithfully execute” the country’s laws, which presumably includes the power to set enforcement priorities.
Therefore, justifying the termination of DACA in court essentially requires proving either that Obama failed to faithfully execute US laws by creating the DACA program, or that continuing the program impedes Trump’s ability to do so. It is difficult to argue either case without declaring that deportation of Dreamers should be a high law enforcement priority – an unpopular policy among both Democrats and Republicans.
Nevertheless, Trump’s legal team might have a chance of receiving a favorable ruling from the Supreme Court, with its 5-4 majority of conservative that includes two Trump appointees. DACA and the Dreamers are nowhere near out of the woods yet.
How Dreamers became pawns in the immigration policy debate
The struggles of most Dreamers are, both literally and figuratively, very distant from the current humanitarian crisis at the US southern border. Some Dreamers crossed that border at a very young age and have no memory of it. And since many undocumented immigrants to the US originally entered the country via airports and other official ports of entry using temporary travel or work visas, quite a few Dreamers have never even seen the US-Mexico border.
When he announced his decision to end DACA in September 2017, Trump set the end date six months out, and also allowed for the possible renewal of existing DACA work permits thereafter. In theory, at least, this time lag gave Congress one more chance to enact a permanent DREAM Act, separate from any other immigration policy bills.
As that six-month deadline loomed, a pivotal meeting occurred between Trump and 24 senators and congressional representatives on January 9, 2018. At the meeting, Democratic Senator Dianne Feinstein of California suggested that Congress should enact a “clean” DACA bill – that is, a bill that focused solely on securing the status of DACA Dreamers.
For a moment, Trump seemed to agree, but the discussion rapidly degenerated when Republican Representative Kevin McCarthy, also of California, insisted that DACA-related legislation must also address multiple other, seemingly unrelated border and immigration issues.
Just one day after that meeting, Trump insisted that a DACA bill would have to include funding for a border wall in order for him to sign it into law. As 2018 wore on and the planned DACA termination stalled in the courts, Trump grew increasingly strident in his stance that without wall funding, no immigration bill would gain his approval. A bill that would have provided Dreamers with a path to citizenship while providing $25 billion in border wall funding failed in the Senate, while the DACA Compromise Act failed in the House of Representatives.
Then, in the elections of November 2018, Democrats seized a 36-seat majority in the , while Republicans retained a majority in the US Senate. With control of Congress now split between the two parties, prospects for any meaningful action on DACA, or immigration generally, grew dimmer.
With Democrat Nancy Pelosi poised to become of Representatives when the new Congress convened on January 3, 2019, Trump pressed hard upon the Congress to act on immigration in December 2018. The result was a 35-day federal government shutdown, the longest in US history.
The shutdown ended with the passing of legislation that included $1.375 billion in restricted border wall funding, far less than the $5.7 billion figure Trump had insisted on, and over $200,000 less than the amount allocated in a previous bill that Trump had rejected. However, the bill did not solidify DACA or resolve the status of Dreamers.
The House of Representatives has since passed the American Dream and Promise Act of 2019, which gives Dreamers a path to citizenship, but the Republican-controlled Senate refuses to consider the legislation. Like the DREAM Acts, the bill will almost certainly die in Congress. Given the anti-immigrant tone of both Trump’s 2016 campaign and his presidency, it was perhaps inevitable that Dreamers would find themselves embroiled in a polarizing political power struggle.
The paradox of life as a Dreamer
After all the sound and fury, immigrants protected by DACA remain in limbo, nervously awaiting the Supreme Court’s ruling. It is very unlikely that the American public as a whole would accept the mass deportation of these young people who call the US home. Yet such speculation surely offers little comfort to Dreamers who have waited in the shadows for so long.
Ultimately, Dreamers live a life of contradictions. Their success stories perfectly embody the American Dream, yet they are not recognized as Americans. They embrace their US identity proudly, and yet have their right to claim that identity denied by people who extol the virtues of patriotism. They love the country that often scorns them in return.
In her own high school valedictory speech, another Dreamer – one who has not yet received DACA protection – powerfully articulated the struggles of life between the lines of US law:
DACA was never intended to provide a long-term answer to the question of how Dreamers fit into US society. With the current, three-way split between the president, the Senate, and the House of Representatives, that long-term answer likely remains years away. For now, Dreamers are left asking questions of their own, the same questions that so many other US residents of color have asked since the nation’s founding.
What happens to a dream deferred?
Does it dry up like a raisin in the sun?
Or fester like a sore – And then run?
Does it stink like rotten meat?
Or crust and sugar over – like a syrupy sweet?
Maybe it just sags like a heavy load.
Or does it explode?
— “Harlem”, by American poet Langston Hughes. From Montage of a Dream Deferred, first publication 1951.