• Daniel Ethan Finneran

What Happens To A "Dreamer" Deferred?

September 2017

What happens to a dreamer deferred? Does he dry up like a raisin in the sun? Or fester like a sore, and then run? I suppose we’ll soon learn of his fate when, in the weeks to come, the tenuous security guaranteed him by the federal government expires.

On Tuesday, Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrivals, or “DACA” program would be coming to its end. An Obama-era initiative, the DACA program was originally implemented to protect from molestation or deportation the many thousands of children brought into and reared in this country illegally. By and large, these children are of South American extraction. They are the children of immigrants and refugees from numerous unstable and tumultuous countries south of the Rio Grande—from places like Colombia, El Salvador, Honduras, and Mexico, all of which are nations struggling in the decades-long throes of penury, political instability, rampant criminality, lack of healthcare, lack of education, and, above all, lack of hope. The children, as they were, came here by no decision of their own. It was of their parents choosing, and what parent would’ve chosen otherwise. They hoped to find in the U.S. the reversals of their Latin misfortunes and to pass on to their progeny a safer and more propitious life. The problem was that they sought our borders, our succor, and our opportunities illegally.

Blameless though their children were and are for having arrived unwittingly illegally on American soil, it’s nonetheless a legal matter of grave significance. While the parents were, at least in the eye of the law, unequivocally alien, the children occupied a more ambiguous space. Were they or weren’t they American citizens? The government couldn’t decide. The anti-immigrant right saw them, youthful though they may be, as personae non-grata. The inclusive left saw them as incipient citizens by consequence of their having crossed the border near the time of their birth, and for having known no other country except for this.

In 2012, the Obama administration attempted to tackle this fraught political situation and this potentially tragic human one. President Obama acted to enshrined this DACA program, which was itself the result of Congress’s inability to make headway on the issue. Since the time of Obama’s first year in office in 2008, the issue of childhood arrivals had floated around Capitol, but no meaningful progress was made in its direction. The years passed and nothing was accomplished. The Legislative and Executive Branches talked endlessly though ineffectually about the urgent need for comprehensive immigration reform, but little was done to show for this. Comprehensive immigration reform, however, proved itself chimerical. Instead of ever having achieved it and resolving the issue as it stood, Congress was able only—after many frustrated years spent trying—to piece together unsatisfying and altogether palliative measures.

Had the original DREAM Act passed in Congress (or had any of the bill’s subsequent re-incarnations gotten through that bicameral body), Obama’s DACA executive order wouldn’t have been needed. The DREAM Act, which stood for “Development, Relief, and Education for Alien Minors” was first proposed by Senators Dick Durbin (D-IL) and Orrin Hatch (R-UT) in 2001. From then until 2012, when Obama stamped into action his DACA Executive Order, the proposal for the DREAM Act was brought annually before the House and Senate. Each year, though, the enthusiasm with which it was received diminished. Futilely, it languished, even while many congressmen held to an indefatigable conviction that they might one day see the bill through. Yet it simply never came to pass.

In the DREAM Act’s absence, and in the presence of an increasing need for something to be done, Obama signed his DACA order. As an Executive Order, whose constitutionality was contested from the start, DACA provided legal protection to thousands of children who were born outside of the U.S., but raised within our borders. These children were, by law, illegal aliens and thus unprotected from deportation if detained or discovered. Their mere presence was, and now again will be, criminal, although more often than not, theirs is an unwitting offense. They may have no memories of their ancestral land (be they the likes of a Colombia, El Salvador, Honduras, or Mexico) and they know only of American virtues and life.

That said, these children can’t be justifiably held to account for their parents’ desperate but illegal indiscretion—that of having crossed the border to rear them in safety. It’s estimated that eighty percent of DACA beneficiaries arrived when they were ten years old or younger, with the average age being six. Sons and daughters share not in their parents’ culpability, and DACA was an effort to recognize this inviolable fact.

While DACA sought ultimately to shield the most vulnerable young children from deportation, it also protected anyone who came to the United States before his or her sixteenth birthday, anyone who had lived in the United States continuously since 2007, or anyone living here under the age of thirty-one when the order was enacted. With the order being applied as such, most DACA beneficiaries are now in their twenties (the average age is twenty-five). Along with those criteria, DACA beneficiaries must also have gone to school or have received an equivalent GED, served in the armed services or have been honorably discharged from its ranks, and not have committed any serious or felonious crime. Remarkably, over fifty-percent of the beneficiaries have taken bachelor’s degrees and many others find themselves gainfully employed in the American economy.

Because so many DACA beneficiaries are either embedded in or soon to be entering America’s work force, the potential for loss (in income, tax revenue, and employment, should they be deported) is immense. If one were to imagine all eight hundred thousand DACA workers losing their work permits and thus their jobs, the Center for American Progress estimates that America’s GDP would be reduced by over $400 billion over the next ten years. Aside from these monetary gains unrealized, the Center for American Progress also estimates that deporting these eight hundred thousand Dreamers (of which six hundred and twenty-five thousand are Mexican), would cost the government another $400 billion. In all, and with the addition of a few other administrative costs, this places the overall monetary impact of deporting all Dreamers just shy of $1 trillion over the next ten years (the CATO Institute’s assessment is a bit more conservative; it places the overall economic impact of repealing DACA and deporting all of its beneficiaries to be around $200 billion over the course of the coming decade).

The numbers are daunting, but their ultimate effect is unlikely to be felt. This is because DACA is unlikely to go anywhere in any meaningful way. Although President Trump voiced on the campaign trail his strong opposition to immigration in general in the spirit of his “America First” imperative, the tune of his early presidency—as it regards to Dreamers—has obviously softened. Whenever the topic is broached, President Trump tends to speak of the Dreamers with tinged compassion. He said, “I have great heart for these folks” (folks being, of course, the Dreamers) and a “great love for these people” and that the Dreamers should “rest easy” when thinking about their uncertain fate.

Trump clearly recognizes the political toxicity that accompanies immigration policy and, for this reason, has been careful in choosing his words. The protection of Dreamers, and the promise of an eventual law that codifies this very protection is a political winner. Aside from a few influential immigration hawks in his administration, DACA is understood to be unanimously popular on the left and increasingly so on the right. Except for Trump’s base and a small but strong subset of reactionaries like Ann Coulter and Laura Ingraham, most people consider DACA a palatable solution. They simply can’t decide on how it’s to be enacted.

The problem with DACA is the presumptively inappropriate way in which Obama went about its enactment. It’s believed, though not without a firm contestation on the left, that Obama circumvented a Constitutional basis for the program’s implementation. This remains a divisive point. On more than a few occasions, it’s even been brought up in federal court. Each time, the government has successfully defended DACA. So, it appears now to be a rather political than a judicial issue.

It’s easy to come to this conclusion after hearing Attorney General Jeff Sessions speak. He announced that DACA will be allowed to continue in its current form for the coming six months (at which time, Congress will have had to have made a decision about the order’s legislative fate), but if DACA truly is an unconstitutional and lawless decree, why wouldn’t the courts and then the Trump administration nullify it right then and there? Propping along this “illegal” program for the next half-year, I should think, would make an accomplice of the propagator. Is the Trump administration now complicit with Obama’s “crime”?

President Obama legitimized the DACA program by relying on his Department of Justice’s “prosecutorial discretion”. The phrase, which sounds uncomfortably close to legalese, is sneakily intuitive. Simply put, as it pertains to an illegal immigrant, prosecutorial discretion allows for a law-enforcement officer to decide when and when not to prosecute a person or case based on the circumstances as they stand. Because the federal government and its law-enforcement offices have only limited resources, they must pursue criminals in much the same way a hospital would triage patients. A law-enforcement agent might defer prosecuting an innocuous illegal immigrant and instead cast his net for a bigger fish. This would be the agent exercising his prosecutorial discretion, vested in him by the Obama decree.

So, based on this concept of prosecutorial discretion, Dreamers thought themselves, for all intents and purposes, immune to deportation. Comforted in this knowledge, they promptly applied to the DACA program, gave to the federal registrars their names, and believed that this prosecutorial discretion would duly respect their autonomy. But it is on this point precisely that the Dreamers’ problems now re-appear. Because Dreamers registered themselves in good faith with the government, they—like fish in a barrel—face the unsettling possibility of being caught and deported at-will. The federal government has access to them all. It’s an access that was ascertained by promising immunity, to which the Dreamers willingly agreed. Now, by the government possibly reneging on this guarantee, the Dreamers seem to be in trouble.

But it’s ultimately up to President Trump if he wants them to be. While it’s not entirely clear what it is he wants to see happen, most signs point to Trump’s predilection for Congress to quickly move and codify into law Obama’s DACA initiative. It seems like this will come in the form of a general and broad amnesty for all immigrants of a certain age. The hope is that this can be hashed out soon. Otherwise, the issue will continue to sag like a heavy load. And what’s next for loads is for them to explode.

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