DACA is dead.
Or more precisely, the death bed has been rolled out.
In a few months, all that will remain for many immigrants is a bitter memory.
I’m not surprised.
But now is not the time to wallow in self-pity.
Rather, it’s time to roll up the sleeves and get back to work on authentic immigration reform.
The DREAM Act is still the solution for Dreamers.
The DREAM Act Roller Coaster
As a front line veteran of immigration wars, I’ve supported the DREAM Act (Development, Relief, and Education for Alien Minors Act) since its inception in August 2001.
At that time, very few knew about the DREAM Act. Far less supported it.
Since that time, the roller coaster ride towards its enactment has been a frustrating political experience.
The associated social experience, from allies and opponents, has been no less unpleasant.
Take the morning of September 5, 2017, not more than an hour after Attorney General Session’s announcement that DACA would be rescinded.
A woman called my Riverside immigration law office demanding to know my fees to help her now that DACA (Deferred Action for Childhood Arrivals) was being killed. When my assistant informed her about the need to arrange a consultation, allowing me to assess her situation and explore her options before setting a price, the woman hung up.
She failed to grasp, like so many DACA supporters, there are no easy immigration fixes.
DACA: A Myopic Political Agenda
I did not like DACA from the beginning. My view was fueled by the high probability of the very actions now unfolding before millions of flabbergasted immigrants, immigrant advocates, and immigration lawyers.
Of course, I was the odd man out.
I was invited to speak at numerous forums on DACA soon after its birth – then promptly disinvited, once I informed event organizers that I planned to explain possible negative effects of seeking DACA benefits.
I was deemed “a traitor of the cause,” whatever that meant.
Luckily, as I learned early in my professional career, sticks and stones may break my bones, but public criticisms never will.
Because I suspect some readers of this post will take offense at my commentary, I’d like to be clear about my position.
From the beginning, I have supported the cause of the Dreamers and the goals of the DREAM Act unequivocally.
I have not agreed with all their actions in the past and will likely disagree with some of their actions in the future.
I did not – and do not – support the duplicity of DACA or the co-optation of the reform movement.
But never doubt that the cause of the Dreamers and the goals of the DREAM Act, centered upon an earned path to lawful permanent residence, I support unequivocally.
How The DREAM Act Was Co-Opted
The birth of my website, as well as my blogging career, coincided with the 2007 version of the DREAM Act.
My earliest writings attempted to explain the DREAM Act is not immigration amnesty and why immigrant children should be given the opportunity to become permanent residents.
At that time, the major obstacle seemed to be public relations in nature. The notion that some immigrants living in the United States might be free from moral blame was foreign to most Americans.
So I endeavored to explain the DREAM Act legislation.
Under the current proposal, the DREAM Act has two steps. To qualify, immigrant children must show that they:
- entered the United States before they were 16 years old
- lived here for five years before the date when the DREAM Act becomes law -and on the date when the DREAM Act becomes law.
- graduated from a high school or earned a GED diploma
- have not committed any crimes and possess good moral character.
Applicants will also need to pay a hefty penalty fee and demonstrate fluency in English. If they can fulfill these requirements, they will be granted conditional permanent residence for six years (two periods of three years).
Step 2 of the DREAM Act Process
After the six-year period has ended, their cases will be reviewed by immigration officers again. This time, they will need to prove that during the six-year period, they:
- Successfully attended college or served in the armed forces for two years
- Maintained a record of good moral character
If, and only if, they have fulfilled these requirements, they will be allowed to become regular lawful permanent residents.
I closed with this commentary:
The Political Process Is Not Over
Under the DREAM Act, there are no immediate rewards. There are no guaranteed rewards. Legalization must be earned.
Many of the exact details still need to be worked out.
It would not be surprising that when the DREAM ACT becomes reality, the current proposal looks quite different than the version passed. More likely than not, the end product will be stricter.
I assumed, and publicly predicted, the DREAM Act would become law by 2010.
Two years later, when Barack Obama was elected president, my prediction seemed on the verge of becoming reality.
I was wrong.
My hopes, and those of thousands of undocumented immigrant youth, were quickly extinguished.
From the outset of his first term, it became clear immigration reform was not to be forthcoming.
Doubts about his commitment to campaign promises continued to grow, and as pointed out about the ongoing battle to pass the DREAM Act, the president was disinclined to exert leadership on immigration issues. Worse, his public comments went back and forth between support and reluctance.
Three years later, facing re-election, Obama announced the birth of DACA. The policy allowed certain immigrants to defer deportation and obtain work permits for a period of two years, renewable upon good behavior, on June 15, 2012. Unlike the DREAM Act, there was no path to legalization.
In their haste to embrace the temptation of employment authorization and deferred deportation, immigrant youth quickly signed on board.
Meanwhile, the DREAM Act faded from public view.
Widespread pressure for authentic immigration reform rapidly dissipated.
DACA’s Fundamental Political Flaw
Ironically, this shortcoming, the inability to earn permanent residency, enabled critics like Sessions to label DACA as an amnesty.
Under the DREAM Act, youthful immigrants would receive work permits and deferred prosecution status. Yet, such goods were only allowed as part of an underlying merits test to demonstrate they were worthy of green card status.
A legal quid pro quo.
Without this end point, DACA looked like an amnesty. Immigrants were being given something for nothing.
They were granted access to the same benefits – work permits and deferred prosecution – but the sole exchange, in the view of opponents and middle-of-the-roaders, were political votes from immigrant reform supporters.
A political quid pro quo.
Under the DREAM Act, the prize was properly set on earning permanent residency and the right to be forgiven for parental indiscretions, not the reelection of President Obama and Democratic Party office holders.
The distinction, never articulated openly, enabled opponents to portray DACA recipients as political squatters, claiming immigration benefits by sole virtue of physical presence and occupation, not earned, hence deserved, entitlement.
To be sure, when Sessions cried that DACA had went too far, his analysis was flawed.
DACA did not go far enough. By stripping out the path to permanent resident status, it disallowed applicants the opportunity to earn their right to legalization.
Politically more significant, it disallowed applicants the opportunity to present a merits based argument to support their cause.
Unfortunately, this distinction was lost on most immigrants and their supporters.
As a result, the subsequent actions of trying to extend similar benefits to undocumented immigrant parents, as well as to enlarge the circle of potential DACA beneficiaries, were likewise products of the failure to understand this distinction.
The proposals were doomed from their inception.
In short, DAPA and the DACA expansion were political miscalculations from the start – miscalculations which ultimately paved the road for the September 5. 2017 DACA rescission.
Alas, it is unlikely that even if DACA supporters grasped the adverse impact of this distinction, it would have deterred them from pushing forward with the two policy expansions.
DACA Risks: Unknown Or Simply Ignored?
Fearing possible negative outcomes, I wrote to slow down the DACA stampede.
I cautioned potential applicants to weigh the risks carefully.
I questioned whether DACA was an immigration dream come true or a nightmare waiting to unfold.
Few cared to listen or heed the potential for adverse consequences. A short-term solution was good enough.
Most minimized the possibility that DACA could have a bad ending.
Thus, I offered this warning:
Imagine Rob Serling describing contemporary immigration politics.
“You are about to enter another dimension, a dimension not of logic and reason, but of manipulation. A journey into the wondrous land of immigration reform. Next stop, the Immigration Twilight Zone.”
You entered the U.S. as a young child with no input in your parents’ decision.
You’ve lived here nearly your entire life. You know no other home. You do not speak, or are not fluent, in the language of your ancestors.
You apply for protection against removal under the DREAM Act deferred prosecution policy.
Your application is reviewed by an officer, in his or her discretion.
The amount of evidence you need to submit is not defined.
Your application is denied, and you have no right to appeal.
Or your application is approved, and a few years later, the program is terminated.
You are sent to immigration court to face deportation charges.
Welcome to the immigration twilight zone.
Over the next few weeks, I watched immigrant activists, non-profit organizations, and church groups join the DACA choir.
Lawyers, too, began to solicit DACA clients.
Given such prodding, it was inevitable that young folks, like mindless consumers on Black Friday, would hurry to get into the DACA application lines.
If those who are counted on to protect innocent immigrants forego their roles for cheap profits, what chance for long term immigration success exists?
Despite sensing the battle for reasoned reflection was already lost, I took to the pen again.
I stressed how much of the so-called professional advice being given at THAT time, if not just plain shysterism, bordered on malpractice.
Lawyers who file deferred action applications impose the following risks on their clients:
DACA provides no path to permanent residency or any other legal status. It’s a legal dead end. If the program ends, and applicants have no other means to legalize their immigration status, will they be placed in deportation proceedings?
There is no guarantee how long the program will remain in place. Some partisan critics have noted that if Obama is not re-elected, DACA may be terminated. However, the reality is that termination could happen even if Obama wins again.
Will the government seek to deport unsuccessful applicants? Thus far, the administration has been fairly quiet on this issue. Could it be the official answer might lead to an untimely loss of political support for the Obama administration?
Even if your application is approved, what’s the risk to your your parents, brothers, sisters who are not eligible to seek deferred action? Are they immune from the long and hostile reach of ICE?
The media, too, deserves some blame for the recent DACA fiasco.
When a Migration Policy Institute study showed stark differences in the DACA application rates between Asian and Hispanic youth, reporters made no efforts to objectively assess them.
In short, the MPI found that whereas 77% of eligible Hispanic youth had sought DACA benefits, only 21% of eligible Asian youth had followed a similar course of action.
The size of the difference, 56%, alone should have sparked an intense media debate.
The highest application rates by eligible youth by country illustrated a similar pattern:
- El Salvador 91%
- Argentina 91%
- Mexico 82%
- Honduras 81%
- Pakistan 28%
- Philippines 23%
- India 20%
- South Korea 20%
Instead, nearly every report on the variance demonstrated a presumptive bias that the better road to immigration success was to follow the path taken by the majority of Latinos.
As a result, Asian and Pacific Islander worries about how applying for DACA benefits could expose family members to risks of deportation were minimized.
Concomitantly, the Hispanic and Latino willingness to potentially place themselves and their relatives in harm’s way was neglected.
The Political Purgatory Of Immigration Reform
September 5, 2017, of course, is not the end of the immigration reform story.
As a college freshman, Altha Williams, the Assistant Dean of Student Affairs, helped me to understand that the shortest distance between two points is often the long way around.
In the world of immigration politics, this formula is especially true.
Today, immigration reformers sit in political purgatory. But purgatory is a temporary stop, not a permanent placement.
The miscues of the past do not ordain eternal second class citizenship. Rather, they impose a price of introspection, patience, and perseverance for those who will legalize tomorrow.
Looking forward, I perceive the Trump rescission of DACA may represent a watershed in the history of immigration reform. It could well be the turning point in our battles against the forces of xenophobia.
Humans are incredibly resilient.
Backed into a corner, the ability to summon previously unrealized abilities to fight back is often uncanny.
The DACA defeat brings the movement back to its roots. It restores the fight for comprehensive and compassionate reform back to the forefront.
There is nothing to lose and a lot to gain.
Immigration Policy: A Past That Haunts, A Future That Taunts
Shortly after Trump was elected, I suggested doomers and gloomers should pause for a moment and reflect back to the world of immigration prior to Obama taking office in 2009.
I asked what had really changed in immigration law since that time?
In the majority of my cases, my office has continued to help immigrants win lawful permanent residence and citizenship under the same regulations and procedures that existed back then.
Immigration lawyers won cases – tough cases, difficult cases – during the Bush and Obama eras under the same onerous set of rules that govern the Age of Trump.
We’ll continue to win them during the present administration.
In fact, on the whole, these are the same laws which have plagued immigrants since Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and turned much of immigration law on its head.
To be clear, I do not relish tackling such equally intense battles over the next four years, but what must be done . . . will be done.
And I am not alone in this perspective.
The fight for immigration reform is ours – and ours alone – to win or lose.
I do not believe failing is in the DNA of immigrants.
Most have traveled too far, overcome too many obstacles, to fall short now.
However, what’s needed is genuine political and legal leadership.
Macro And Micro Roads To DACA Permanent Residency
At the macro level, I suspect my friends at organizations like the American Civil Liberties Union (ACLU), Coalition for Humane Immigrant Rights (CHIRLA), and Immigrant Legal Resource Center (ILRC) are already plotting new legal strategies for DACA beneficiaries about to lose their status.
The filing of large-scale class actions, similar to those launched in the late 1980s and early 1990s, which took nearly 10 years to settle in some instances, would not shock political insiders.
As a result, there are strong odds that the cases of DACA beneficiaries currently at risk for removal will remain open past the end of the Trump presidency.
Generally, such matters are closed via settlements reached by agreement of the opposing parties. It is not stretching the imagination too far to visualize a settlement for the DACA beneficiaries which opens a path to the revival of the DREAM Act and legalization.
At the micro level, the DACA termination does not mean automatic deportation. Due process remains the law of the land.
If ICE apprehends a DACA recipient, that individual has the right to be heard at immigration court.
Cancellation of removal is one possible course of action.
Since DACA folks had to be in the U.S. continuously since June 15, 2007, they now have the ten years to qualify for cancellation of removal. They also needed to pass a good moral character background check to qualify for DACA. If they have a qualifying relative, they have a chance to win a grant of legal residency at immigration court.
Right now, with immigration court backlogged 500,000 cases, another 800,00 DACA cases would create a backlog of over 1 million cases.
Given an immigration court system with only 300+ judges, most deportation defense cases will be unable to move quickly from start to finish.
There are several other options for detained and undetained DACA recipients to explore, including adjustment of status, consular processing, asylum, VAWA, and employment-based measures.
Many of the DACA folks are now in their early 20s and 30s, and their lives have changed since their initial applications. These changes may carry the seeds for permanent resident status.
But there’s a caveat.
Fight Or Flight: Is The Immigration Reform Movement Up To The Challenge?
Now is not the time to sit still and do nothing. Or to run away from the battle. Now is the time to plan ahead, to take disaster prevention steps in your individualized case.
Moreover, now is not the moment to accept more political and legal crumbs. Immigrants must go outside their personal agendas and not fall for another short-term “best we can get” false solution.
Reformers cannot allow history to repeat itself.
Commitment to and self-sacrifice for the greater immigration good are essential components for comprehensive and compassionate reform.
Are immigrants, immigrant activists, and immigrant lawyers up the challenge?
Are you up to the challenge?
If September 5, 2017 is to become our May Day, nothing less will suffice.
By Carlos Batara, Immigration Law, Policy, And Politics