Deferred Action for Childhood Arrivals: A Constitutional Issue

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Deferred Action for Childhood Arrivals (DACA): A Constitutional Issue
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Deferred Action for Childhood Arrivals (DACA): A Constitutional Issue I. Background
The question of immigration is a staple in U.S. politics, elections and culture. Founded as a “nation of immigrants” seeking refuge from religious, political, and social oppression, immigrants to what has come to be United States of America have found a new Promised Land to practice religion freely and, as a new republic was born and a constitution drafted, “free enterprise” and “pursuit of happiness” have come to define experiences in U.S. for new immigrants and “native” residents. The U.S. immigration laws, regulations and policies have ever since evolved – and, for that matter, modified, argued, and confirmed/declined – over centuries. In early foundational years of U.S. republic, a “European” experience was a predominant factor to propose and introduce new bills and laws into U.S. growing arsenal of laws of a en expanding republic. That is, Europe, a main source of immigrants for a new nation, defined immigration in U.S. early foundational period. Typically, an independent entrepreneur (or, “adventurer,” using a word in common use in early immigration phases), a (Christian) family and/or a “mercantile class” investor were “staple” immigrants to a United States of America. The “negros” (i.e. Africans shipped from West Africa to work in plantations in U.S. South) and “wetbacks” (i.e. Mexicans who were so commonly referred to centuries on) were, “constitutionally” and in practice, cast out of such a designation of immigrants usually reserved for European newcomers. In as late as early 1900s, immigration to a United States of America was still a matter of “free flow” of people crossing ports of entry primarily by land (such as Mexicans did and still do), by sea (such as Caribbeans did and still do) or, decades on, or by air (as a good many “visitors,” coming for a “short family visit,” for vacation or short business
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matter did and still do). In early 1990s and early 21st century, means to avoid immigration authorities have narrowed down considerably and, should a “visitor” overstays, deportation is imminent – no short notice and, for that matter, no due process.
The current reality of U.S. immigration system has, however, outgrown earlier (and much outdated) immigration laws, regulations and policies. If anything, millions of “illegal,” or undocumented, immigrants currently reside in a United States of America increasingly relying on “temporary work permits” to admit “aliens,” particularly from Mexico, to perform a wide range of jobs, usually for below-standard wages and, for that matter, for next-to-nothing job benefits, guarantees or security. Th evolution of immigration in more recent years, into a United States increasingly depending on “alien” workers performing jobs in service industries, has created a new reality whereby a window opportunity has opened for millions of Central and South American families wishing to pursue a “good life,” away from wars, violence (domestic and political) and poverty at home. Facing grueling immigration restrictions, Central and South American families started “shipping” attended children to U.S. by mid 1990s and early 2000s. These children, currently referred to as “Dreamers,” started a new life in new sanctuaries and among new families, independently from families at home. Technically, “undocumented,” such class of “citizens” has grown up Americans in every possible way yet are of no U.S. legal status. The Dreamers, subject to immediate deportation, were – still are – a new class of U.S. citizens, visible physically yet invisible legally. In contrast to a conventional class of “undocumented immigrants,” Dreamers are already acknowledging a precarious residence status and, more importantly, are not avoiding immigration authorities. The question of unattended Central and South American children coming and residing in U.S. for years was a matter of law vs. politics.
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From a narrow legal perspective, Dreamers are not U.S. citizens or “natural” residents yet are residing “unlawfully” and, as such, deportation is simply a matter of enforcement. From a political perspective, however, Dreamers, visible to all and known to immigration authorities, provide “good fodder” for political jockeying and manipulation. That is, Dreamers, as a new class of documented yet unlawful citizens, offer political parties a golden opportunity to argue for/against immigration in each and every election and, for that matter, as political seasons afford. The election of Barak Obama in 2008 was a rare window of opportunity to push for a legalized presence of Dreamers on U.S. soil.
Technically, Dreamers are not eligible, by any explicit “constitutional right,” to continue to reside in U.S. To do so, an executive order, nothing short of a presidential order, was required to stop ongoing raids on places where Dreamers live and/or work at and, for that matter, offer safeguards against any immediate actions made by federal immigration authorities under law. The presidential executive order came in a form of a new federal policy, Consideration of Deferred Action for Childhood Arrivals (DACA) effective as of June 15, 2012, making possible for “certain people who came to the United States as children and meet several guidelines...request consideration of deferred action for a period of two years, subject to renewal” and “are also eligible for work authorization” (“Consideration of Deferred Action for Childhood Arrivals (DACA)”, n.d.). Thus, in place of a permanent “legal” status,” a deferred action is applied as “ a use of prosecutorial discretion to defer removal action against an individual for a certain period of time” and, as such, “ does not provide lawful status” to Dreamers (“Consideration of Deferred Action for Childhood Arrivals (DACA)”). Under Obama, DACA, for one, hit against several constitutional challenges. If anything, DACA, argue
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opponents, is a “clear” example of presidential powers overstepped. Specifically, DACA, as an executive order meant to protect a class of U.S. “residents” against immediate deportation by waiving immediate law enforcement action, is an act of political intervention meant, ultimately, to secure votes of Hispanics – a staple voter base for Democratic Party. The pressures DACA has continued to face are, in fact, evident in many instances including, for example, constant updates of Department of Homeland Security (DHS) statements on DACA, updates reflecting shifts in policies and actions in executive, law enforcement and legal areas. This is a sample of DACA updates (and more can be found on DHS website):
September 12, 2016 Update: [original emphasis] Due to a federal court order, USCIS will not begin accepting requests for the expansion of DACA on February 18 as originally planned. The court's temporary injunction, issued February 16, does not affect the existing DACA. Individuals may continue to come forward and request an initial grant of DACA or renewal of DACA under the guidelines established in 2012 and discussed below.
June 27, 2016, Update: [original emphasis] The Supreme Court’s 4-4 decision on June 23, 2016, in United States v. Texas does not affect existing policy regarding 2012 Deferred Action for Childhood Arrivals (DACA). Individuals who meet the 2012 DACA guidelines may continue to come forward and file an initial or renewal request for DACA under the 2012 guidelines.
The Supreme Court decision does, however, mean that the injunction prohibiting implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded DACA remains in effect
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February, 15, 2015, Update: [original emphasis] Due to a federal court order, USCIS will not begin accepting requests for the expansion of DACA on February 18 as originally planned. The court's temporary injunction, issued February 16, does not affect the existing DACA. Individuals may continue to come forward and request an initial grant of DACA or renewal of DACA under the guidelines established in 2012 and discussed below. Please check back for updates. (“Consideration of Deferred Action for Childhood Arrivals (DACA)”)
The push and pull for and against DACA continued under former U.S. President Barak Obama. Given a state-by-state court decisions, DACA has continued to oscillate, just as a pendulum does, between a complete discontinuation and full implementation and legalization. Meanwhile, changes in political climate, coupled by parallel changes in social and cultural life, have introduced new realities. Specifically, a wave of (white) nationlisms sweeping Europe and, soon U.S., has introduced into U.S. political facade a group of “politicians,” some “old guard” and some with virtually no political experience, including outgoing U.S. President Donald Trump. This class of politicians, always part of U.S. political and cultural fabric, is anit-globalization and anti-immigration. Unsurprisingly, DACA, a “good fodder” in politics, has been evoked again as an invaluable “artifact” of political contestation of one governing party (GOP) and a second in opposition (Democratic Party). Playing on immigration as a perennial U.S. issue, U.S. President Trump pushed against DACA, using loyal executive powers of Department of Justice (DOJ), to “use information submitted by Dreamers who applied for the Deferred Action for Childhood Arrivals program to deport them now” (Feldman, 2017) In doing so, President Trump – and, for that matter, a string of America First loyalists – has expanded debate on DACA beyond narrow
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legal claims into wider constitutional matters spanning issues of free speech, due process and, of course, American justice in general. Specifically, current challenges to DACA are expanded, under new political realities (and polarization), beyond “petty” political and/or legal quibbles over some presidential policy of a former president into a wider debate not only among law experts and “professional” politicians yet also...