By Marcia Chaiken and Jan Chaiken
The fate of over a half-million young adults, born in Mexico but raised in the U.S., will hang in the balance when the U.S. Supreme Court convenes this fall and hears cases that challenge the legality of DACA – Deferred Action for Childhood Arrivals. Although there are immigrants from other countries who are registered in the DACA program, Mexicans constitute 80% of the more than 700,000 people who were in the DACA program as of a year ago. And given the current composition of the Court and related rulings, it is quite possible that these young people, who have provided demonstrable valuable service to the U.S., may be deported to Mexico, a country where most can’t recall living previously, with no friends and possibly no family, and a culture with which they do not identify. How did they become enmeshed in this travesty?
The expression “the road to hell is paved with good intentions” is fitting in the case of DACA. The first incarnation of DACA was a bi-partisan bill introduced in the US Congress in 2001 with the title Development, Relief, and Education for Alien Minors (DREAM) Act. The intent in essence was to provide a pathway to citizenship for exemplary immigrants who were brought here as children without legal documentation. The original bill did not pass nor did many other incarnations with the same intent. In 2010, the DREAM Act passed the House of Representatives but stalled in the Senate for a deficit of 5 votes.
In 2012, President Obama, fed-up with the DREAM Act bottleneck in Congress, created the DACA program by executive order under the supervision of the Secretary of Homeland Security. In that position, Janet Napolitano announced on June 15, 2012, that undocumented immigrants were exempt from prosecution and deportation if they registered in the DACA program. Those eligible to do so had entered the US before age 16 and were
· physically present in the US on the date the program was announced and continuously residing in the US since that date
· 31 years or younger on that date
· currently in school or graduated from high school or have a GED
· an honorably discharged veteran
Eligibility also required that an applicant had not been convicted of a felony, significant misdemeanor or three or more other misdemeanors, and did not pose a threat to public safety or national security
Applications were first accepted in August 2012 and over 90% of applicants were immediately granted a two-year period during which they would not be prosecuted or deported, plus they had the right to apply for extensions every two years as long as they maintained the required clean criminal record.
Over half of the DACA applicants were from California or Texas with substantial numbers of applicants living in New York, Illinois, Florida and Arizona.
A plethora of economic studies of the effects of DACA have shown that DACA has been a boon to the US economy. Once they were granted prosecutorial deferral, DACA-protected immigrants were found to be more likely than other undocumented immigrants to complete high school or college and to enter professions where they pay into Social Security and Medicare; DACA participants also contribute more generally to national and state economies. There is no evidence that DACA immigrants are replacing citizens in the labor market. Anecdotal evidence about DACA participants has highlighted individual achievements in teaching, medicine, the military and other professions. Scientifically conducted polls have repeatedly shown that the vast majority of US citizens approve of the DACA program and want to grant DACA participants citizenship. However, these findings have not stilled loud and baseless outcries about the dangers of DACA from blatant anti-immigrant xenophobes.
One of the first legal challenges to DACA, more specifically DACA extensions, was filed by Joe Arpaio in 2012, who at that time was serving as sheriff in Maricopa County, Arizona. Arpaio is notorious for his outspoken xenophobia and discriminatory racial policies and practices. Even after numerous civil rights violations were filed against him and a federal injunction forbade him to stop rounding up Latino people – undocumented and legally documented immigrants and citizens alike – he continued this practice and was found to be criminally in contempt of court. He was later pardoned by Donald Trump who called Arpaio “an American patriot” who “kept Arizona safe.”
The loudest and most vicious critic of DACA is, of course, President Donald Trump. His 2016 campaign for the presidency began by calling Mexican immigrants “criminals” and “rapists.” Throughout his bid for the presidency he successfully whipped up xenophobic excesses among those attending his rallies, so it was no surprise that on September 5, 2017 – less than eight months after he was inaugurated, Trump directed that his Secretary of Homeland Security announce the termination of the DACA program. Millions of lives were immediately thrown into turmoil, not only the lives of DACA participants but also their family members, employees and co-workers. On the same day, the Foreign Ministry of Mexico, speaking on behalf of the many Mexican citizens involved, announced that the government of Mexico “profoundly laments” the action of the Trump administration. But it added that if deportation took place, “Mexico will receive with open arms the young dreamers who return to our country.”
Several prestigious US organizations almost immediately filed legal challenges to the termination of DACA including the Regents of the University of California, Princeton University, and the NAACP. The federal courts, both lower and appeals courts, have for the most part supported these challenges, vacating termination and restoring DACA’s protection of participants from deportation. However, challenges to the legality of the DACA program filed by seven states – most of them having well-known sizable populations of racist and xenophobic citizens,including Texas, Alabama, and South Carolina – gave Trump the ammunition he needed to badger the Supreme Court into taking judicial action in the case of DACA. In February 2019, the Foreign Relations Secretary of Mexico countered that while the return of DACA participants would be “a great gain for Mexico and a loss for the United States,” Mexico is supporting these talented young people of whom a vast majority want to remain in the United States.
Given the current composition of the Court with a majority of conservative judges, including two appointed by Trump, it is clear that the future of DACA is in jeopardy. One of the court’s recent rulings was to uphold the third version of Trump’s proclamation banning Muslim immigrants. Some of the US citizens most disgusted by this decision are justices of the Supreme Court. In their dissenting opinion, Justice Sotomayor, joined by Justice Ginsberg, stated, “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. That troubling result runs contrary to the Constitution and our precedent.”
One can only hope that in the coming decision on DACA, these Justices will prevail and uphold this popular and beneficial program in the light of the US Constitution and judicial precedent that embraces diversity and rejects xenophobia.