Everything somehow sounds worse when President Trump does it. Now everyone in the media seems convinced that Trump, out of pure evilness, had suddenly terminated some long-standing immigration policy and took perfectly legal status away from a million people. Do not forget that the DACA story is not that simple. For one, its participants are called “Dreamers” after a 2001 legislative proposal (DREAM Act) that never actually became law, despite numerous attempts to introduce in the US Congress its various iterations over the years. So while the fate of the DACA participants is compelling, Trump is really hardly the only one to blame for it.
The whole predicament of DACA is quite hard to understand here in the UK, where rights of immigrants arriving as children are enshrined in many various provisions, dictated largely by ECHR, and various case law that tells us that best interests of children must be paramount. Anyone arriving in the UK before 12 and a half, by and large, has an eventual path to citizenship (except if they were absent excessively) enshrined in legislation. In the UK this never bothered anyone — no one is really against those who grew up in the UK, ending up being its most cohesive group.
Most of the reasons against “standing amnesty” provisions that give eventual path to citizenship to those who accumulate significant swaths of illegal stay, are that when these provisions are legislatively enshrined and reliably applied, they become relied on as a primary immigration plan. When we had a 14-year standing amnesty, people simply modeled their whole life planning around it, instead of bothering to comply with the rules and requirements. The policy does not wish to reward — and thereby encourage – defiance of the rules, especially in the UK, one should think, where most immigrants arrived legally once, and continued compliance was a realistic option for most of them at one point.
Yet, we all agree that children should not be blamed for the sins of their parents– and even if the parents may have in fact relied on this right being available to their children in the future, no harm is done when it is the children who will benefit (some parents may benefit from a 7-year child provision., but again, their numbers aren’t great).
Most importantly, while these schemes arguably reward poor immigration compliance of families with children already in the UK, it is not an issue in the country where more and more families do not risk their lives in the desert bringing more babies to it — if they survive the journey – at the tremendous risk to those children and simultaneously defiance of the legal system.
In the US, however, most of the “young adults” currently in the DACA program, arrived in the US as small children with their families just too late to benefit from the 1986 Reagan immigration amnesty (yes, the most famous immigration amnesty in the US was actually passed by its most conservative administration). I was 11 and thousands of miles away, but I remember the 1986 US amnesty well, as it made social vine headlines even in my parents’ dissident circles in the USSR. It applied only once to those who had been already in the US at a given time, but indisputably encouraged later arrivals, both illegally over the border and aspiring visitor visa overstayers from elsewhere.
The sense that one more amnesty was inevitably coming for the same generation, was in the air throughout the late 1980s and early 1990s — but it never came. Instead, the current US immigration system, enacted during the Clinton years, made it impossible to ever legalize or adjust status in the US for those who had entered it illegally, regardless of length of residence, citizen family members, etc etc. Worse, accumulation of illegal residence made them subject — much like in the UK — to bans up to 10 years, so most could not leave because they would not be able to return (in the UK, general grounds for refusal, such as ban based on prior overstay, do not apply to spouse visas, but in the US, they do – and on top of that, most of adults involved in years of illegal residence accumulate also petty criminality that makes them further ineligible, which is usually incidental to their illegal status, eg fraudulent use of IDs and social security numbers in order to survive). Basically two generations were permanently trapped, and so they remain, some 10 million apparently.
Compelling arguments are on both sides — much as the very expression “on both sides” is now discredited. On one hand, clearly the 1986 amnesty did encourage further arrivals to the US, and any further such provision would be madness without somehow reducing the future numbers. On another, that was more than 30 years ago now, and much as the Americans like to think of their country as a shining city on the hill, those people who ended up trapped in contempt, discrimination and illegality for 30 years, paid the sort of price not everyone necessarily will want to also pay as well. Their whole lives were passed in this manner, and their children, American for all practical purposes, indeed were not the ones who made the crazy decision. The DACA generation is mainly the one that suffers in part for the sins of their parents, and in another part – so that not to encourage future parents to do the same.
The DREAM act, which proposed to provide legal status to those who had arrived in the US as children but were now adults with either high school education or military service, had multiple iterations, that ranged in how much benefit would in fact be provided, or whether there would be ultimately a “path to citizenship” – never passed in US Congress, as the opposition to it was too great throughout both Bush and Obama administrations.
DACA was merely an executive action order (the same kind of instrument as the decried recent Trump travel ban), adopted by Obama administration in 2012, just before the end of Obama’s first term, in order to attempt to fulfill some of his campaign immigration promises, which otherwise were a failure on all fronts. Obama was decried, if people only remembered today, as a Deporter-in-Chief, and has had more people removed from the US than any of the previous US administrations.
In fact, it was Obama administration that conceded to the awful, vile Secure Communities Act, that intermingled minor criminality and immigration enforcement, thereby having a terrible effect on criminal justice system — with a side effect of a US-Visit program, mandatory fingerprinting search on all entries to the US, which had one 70-year old gentleman who lived in the US almost all his life as a legal permanent resident suddenly deported for a 1970s misdemeanor. All of those things were President Obama’s doing, and for all we know he did not lose much sleep over them.
And then, when people started to be quite annoyed by all this, Obama administration threw immigration activists DACA, pretty much, as a bone. The thing is, the US President (unlike the UK Prime Minister) has no say in legislative policy, and Congress during both Obama administrations was largely hostile to them. All that is available to the President is whatever is within the realm of the executive power — enforcement. DACA program promised all the President could — that these people, should they choose to step forward and identify themselves, will not be deported — no one said that they will never be deported, or for how long will they definitely not be deported, but American as they all are, surely these people knew that the good will may well not extend past the Obama administration’s own shelf life. Those who did choose to come forward receive some sort of quasi-temporary status, such as a right to drive and work for a living, even though technically they remained deportable at any time if the – or a future administration – chose to change its priorities again.
One aspect of DACA which made many uncomfortable, myself included, was that it became standing policy, written in a way that allowed those brought to the US as children under 16 after its adoption to also subsequently benefit once they met the requirements, namely live here for 5 years and graduate from high school. That caused arguably, again, some upsurge in children –teenagers, indeed- being sent, shipped, pushed and travelling unaccompanied to the US in large numbers, and ending in circumstances not well thought through at all, at risk of abuse, trafficking and exploitation. the policy was announced five years ago. So it is now the moment when subsequent arrivals past its establishment would become also eligible to file applications. THIS is a good place to draw the line, if any. DACA was supposed to be a reprieve — it cannot operate as quasi-immigration law relied upon by future waves of migrants.
The biggest problem with DACA program cancellation now, in fact is not the fact that, after five years of issuing this very intangible document, the government will again stop doing it. The problem is, that people did come forward, and the government, which turned quite hostile to immigration in the meantime, now knows a whole lot it didn’t know about them — who they are, and where they live. So if it chose to deport them, say, on 6th March 2018, it knew the doors to kick in (although I am guessing many will be moving in the next six months — if I were them, I would!). This erases any sort of trust in the good will between the immigrants rights community and the government, if there ever was any. Next time — in no matter how many years — the government suggests anyone comes forward for any purpose, not too many will do, unless a full amnesty was already enshrined in legislation.
Obama administration, and the whole concept of executive privilege in the United States (ability of the government to act without legislation from Congress) , took a huge hit on DACA — perhaps larger than it was worth, given how little assurance of anything at all it gave. The administration tried to also adopt DAPA – a similar quasi-legalisation , or in fact a deportation reprieve upon registration, for those illegal immigrants who had US citizen children. DAPA never started its operation as an injunction on it was issued by the Federal courts (and upheld by the Supreme court at the time it lacked the 9th justice).
This was basically because Congress, having recently considered and failing to pass the comprehensive immigration reform in 2013, which contained the amnesty provision, had explicitly refused to adopt it, so this was considered something executive privilege did not apply to. DACA could be somewhat distinguished, in that it applied to a relatively narrow category of people not at fault for their predicament — and not specifically enumerated in the most recent previously failed legislation – yet it was still under threat and its legality was a matter of debate, which Supreme Court had not yet fully considered on the merits.
In defending DACA, liberals cried on every corner that it was not trying to quasi-legislate some sort of status on undocumented migrants, but merely exercising enforcement powers wisely! One could have trouble believing today, that just two years ago all liberals were HUGE fans of executive orders on immigration, and a President’s right to choose enforcement priorities. Much as they screamed that DACA was not legal status, they now seem to scream that it was, it was a perfect, brilliant status, and everything was totally lovey dovey until evil Trump took it away.
Whatever authority Trump does now have for both the travel ban and to round up all DACA participants and send them off tomorrow, it was the liberal defenders of DACA who articulated and defended that power for him. It is the same power. Simply in the hands of a different person. Trump, although I am not his fan by a long shot, did not take much from these people, because they had next to nothing to start with. I am quite willing to give him the benefit of the doubt on this one — it seems, from the coverage here in the US, that in fact he indeed does not want to deport any of them. He is just simply sort of caught between a rock and a hard place, having surrounded himself with immigration hardliners.
It might not even be coincidence that he suddenly remembered today what friends he once was with Chuck Schumer, who of course was the main sponsor of the most recent failed comprehensive immigration reform bill. The bipartisan Bill of Eight of 2013, passed in the Senate but buried in Congress, introduced a points based system VERY much like the one Trump lately tried to propose (and like the one in operation in Canada, the UK and Australia, so not a new thing). I still remember Mitt Romney promising to staple a green card to my diploma — too bad that didn’t work out! Except when Schumer suggested all of this, it was supposedly a liberal dream, and now that Trump mumbled something about it, he was basically just heckled by all humanity. No one even bothered to try and make out what he was saying.
The public pressure on Congress to now finally pass some version of the beligered DREAM Act is unprecedented, and they could pass it tomorrow– there is certainly enough votes now to enshrine DACA. The thing is, US Congress can’t pass just a bill on some one thing. They start talking about Immigration Reform and wander off, like children — because it goes on to things they can never agree on. But DACA they all do agree on, mostly. They could just do it and give those people what they actually need — temporary legal status,so that indeed they will not be deportable anymore. This will be by all accounts a better, and the only meaningful outcome.