By Amber McGee, Staff Writer
Introduction
The Statue of Liberty stands as a symbol to all Americans. She is the iconic gatekeeper to the “American Dream,” greeting thousands hopeful of finding a better life in America. She has welcomed them with the words, “Give me your tired, your poor, / Your huddled masses yearning to breathe free, / The wretched refuse of your teeming shore. / Send these, the homeless, tempest-tossed to me, / I lift my lamp beside the golden door!”[1] But as the open gates have closed and walls have risen, what is to be said of this land of opportunity?
America is now faced with a choice that may come at a great cost to Americans and dreamers everywhere. The United States has become increasingly divided on many issues, but especially polarizing are those involving immigrant and refugee communities: the Deferred Action for Childhood Arrivals (DACA) in particular. While American citizens remain divided on whether this program should continue, and how, so do their representatives.[2]
DACA, implemented in 2012, gave thousands of undocumented immigrants the opportunity to come out of the shadows of illegality and pursue the “American Dream.”[3] President Barack Obama crafted this program to address the struggle faced by undocumented persons who entered the country illegally as children through no fault of their own.[4] The constitutionality of President Obama’s executive order fueled President Donald Trump’s decision to do away with it, challenging Congress to take appropriate action to aide DACA recipients (or “DREAMers”[5]). Is President Trump right? Was President Obama wrong in implementing the program to begin with?
Who Are the Dreamers?
Making the choice to apply for protected status under DACA was not something dreamers did lightly. For those who took advantage of this program, many were scared that once they gave their information to the United States Government, Immigration and Customs Enforcement (ICE) would come after their families or leave them vulnerable to officials if they were not approved. As it turns out, they were right to be apprehensive. Now that ICE has increased their vigilance under the Trump administration, it is no longer just criminals who have to worry about facing deportation. According to USCIS, the requirements for protected status under DACA were met only by those who:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching their 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
- Had no lawful status on June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.[6]
In an interview with a DACA recipient who wishes to keep their identity anonymous, the DACA recipient shared that the reason a lot of dreamers applied was to alleviate the fear of possible deportation. Growing up surrounded by American culture and attending public school, the recipient stated they were unaware of their lack of legal status in the United States until their early teen years. “When I heard about people being caught by immigration and deported,” the recipient said, “I asked my mom about it. She said that could happen to me, and then I was a scared.”
Unfortunately, undocumented immigrants often find themselves at a heightened risk of being taken advantage of. Notario fraud has become an increasingly prevalent issue for immigrant communities.[7] The American Bar Association acknowledged that “individuals who represent themselves as qualified to offer legal advice or services concerning immigration or other matters of law, who have no such qualification, routinely victimize members of immigration communities.” The victimization does not stop there. Due to the reluctance of many undocumented persons to come forward and speak to lawyers about their cases, some lawyers have also required their clients to pay big fees upfront, and then they have either not performed their promised duties, or they drag cases out and simply collect as many fees as possible.[8] Undocumented persons ultimately feel they have no other recourse, so they are routinely taken advantage of.
How Did They Get Here?
The dreamers came to the United States as children through no wrongful acts of their own. Many were babies or small children and do not remember where they came from or the journey they took to come to the United States. One anonymous DACA recipient explained that they did not remember crossing the border, just that their mother lost friends who died in the desert and that it was a long walk, where children were put on their parents’ shoulders. Hearing stories like this, stories that end in tragedy for many, should resonate with American citizens. The journey that many took to the United States was fraught with uncertainty and danger.
Crossing the border is a dangerous task to undertake. If there were any other possible and practical legal way to gain entry into the United States, people would choose that option. However, the United States immigration system disfavors those from certain overrepresented countries, such as Mexico, the Philippines, China, and India.[9] The visa bulletin shows which date USCIS is processing for certain categories of visas. For example, the F1 family sponsored visa for those with immediate family in the United States sponsoring their loved ones in Mexico for a visa shows a processing date of Nov. 1, 1996, as of October 2017.[10] This means that persons applying for this family-based visa, if they were to file today, would likely have to wait over 20 years for USCIS to review their application.[11]
Many families cross the border for similar reasons. They come for the “American Dream.” As the DACA recipient said, they came for a chance “to be somebody.” This DACA recipient has vague memories of Mexico: “Over there, you would work and barely have enough to eat. Most of the time we just ate salt tacos, warmed up tacos and put salt on them. When we had money, we would eat beans, which is the next cheapest thing besides tortillas and salt.” With opportunity on the horizon, families from countries like Mexico did what families from all over the world have been doing for many years: They came to America in search of opportunity and a better life.
How Did Protected Status Under DACA End?
On Sept. 5, 2017, President Trump announced that he would be ending the DACA program.[12] He urged Congress to step in and pass legislation to take the place of the executive order which made the program possible. The Trump Administration spoke out against DACA, vowing to do away with what it considered an overly broad amnesty program.[13] All the while, President Trump assured the American people that “we’re gonna show great heart. DACA is a very, very difficult subject for me, I will tell you.”[14]
On the eve of the announcement to end the program, the Attorney General sent a letter to the Department of Homeland Security articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”[15]
As the Trump Administration vocalized its final decision on the matter, President Obama, corporate America, and immigrants’ rights advocates everywhere spoke out against the decision. President Obama called President Trump’s decision to end the program “wrong,” “self-defeating,” and “cruel.”[16] Facebook founder Mark Zuckerberg posted on his personal Facebook page, “This is a sad day for our country. It is particularly cruel to offer young people the American dream, encourage them to come out of the shadows and trust our government, and then punish them for it.”[17]
Where Do DACA Recipients Stand?
As of Sept. 5, 2017, no new applications for DACA would be accepted.[18] While those who had pending requests for DACA would still be awarded, for those with current protected status, once their status expired, they would no longer be protected against deportation.[19] This placed many individuals in limbo, an uncertainty wreaking havoc on DACA recipients and employers alike.[20]
Time will only tell what becomes of the nixed program. The Trump Administration has passed the torch on to Congress. Just this week, a San Francisco federal judge “temporarily blocked the ending of [DACA] late Tuesday in a 49-page ruling.”[21] Judge William Alsup stated renewal applications for DACA needed to be considered as lawsuits challenging the end of DACA still proceeded. New applicants need not be considered, however.[22] Amid politics and controversy, however this turns out, it is important to remember the great stakes involved for DACA recipients, their families, their employers, and many others who have known them. Thousands are waiting to see if they will be recognized legally in the United States, and to see if the country they love will lift a lamp beside the golden door — or slam it in their faces.
Amber McGee is a 2018 J.D. candidate and award-winning Trial Advocate. She is an active member of the Public Interest Law Association and hopes to pursue a career in child and immigrant advocacy.
Sources
[1] Emma Lazarus, New Colossus, The Poetry Foundation, https://www.poetryfoundation.org/poems/46550/the-new-colossus (last accessed Dec. 18, 2017) (from Emma Lazarus, Selected Poems and Other Writings (Gregory Eiselein ed., 2002)).
[2] Nate Cohn, Polarization is Dividing American Society, Not Just Politics, NY Times, (June 12, 2014).
[3] U.S. Citizenship and Immigration Services, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016. https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2016_qtr3.pdf.
[4] Id.
[5] Dan Stein, Symposium: Why United States v. Texas is the Most Important Case the Court Will Decide this Year, SCOTUS Blog (Feb. 9, 2016). http://www.scotusblog.com/2016/02/symposium-why-united-states-v-texas-is-the-most-important-case-the-court-will-decide-this-year/
[6] Consideration of Deferred Action for Childhood Arrivals, Department of Homeland Security, https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca#guidelines (last accessed Nov. 22, 2017).
[7] About Notario Fraud, American Bar Association, https://www.americanbar.org/groups/public_services/immigration/projects_initiatives/fightnotariofraud/about_notario_fraud.html (last accessed Nov. 22, 2017).
[8] Stop Notario Fraud, American Immigration Lawyers Association, http://www.stopnotariofraud.org/ (last accessed Dec. 30, 2017).
[9] Visa Bulletin for October 2017, U.S. Department of State, https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2018/visa-bulletin-for-october-2017.html (last accessed Nov. 22, 2017).
[10] Id.
[11] Id.
[12] Michael Shear and Julie Hirshfeld Davis, Trump Moves to End DACA and Calls for Congress to Act, NY Times (Sept. 5, 2017). https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.
[13] Dan Stein, Symposium: Why United States v. Texas is the Most Important Case the Court Will Decide this Year, SCOTUSBlog (Feb. 9, 2016). http://www.scotusblog.com/2016/02/symposium-why-united-states-v-texas-is-the-most-important-case-the-court-will-decide-this-year/.
[14] Rosa Flores, ICE Twitter messages fuel deportation fears for student, 19, CNN.com (Mar. 13, 2017). https://www.cnn.com/2017/03/12/us/daca-recipient-fear-ice-tweets/index.html.
[15] Elaine C. Duke, Memorandum on Recession of Deferred Action for Childhood Arrivals (DACA), HOMELAND SECURITY (Sept. 5, 2017). https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca.
[16] Stein, supra note 13.
[17] Id.
[18] Duke, supra note 15.
[19] Id. See infra note 21.
[20] David Bier, Ending DACA Will Impose Billions in Employer Compliance Costs, Cato Institute, (Sept. 1, 2017), https://www.cato.org/blog/ending-daca-will-impose-billions-employer-compliance-costs?utm_content=bufferb97e2&utm_medium=social&utm_source=plus.google.com&utm_campaign=buffer.
[21] Alicia A. Caldwell, Judge Blocks Trump Plan to End ‘Dreamers’ Program, Wall Street Journal (Jan. 10, 2018, 12:31 a.m. ET), https://www.wsj.com/articles/judge-blocks-trump-plan-to-end-dreamers-program-1515562296.
[22] Id.
