by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park and Lorella Praeli, Director of Immigration Policy and Campaigns and former Dreamer, American Civil Liberties Union
*This piece draws from an ACS briefing call on DACA from August 24, 2017
During the 2016 presidential campaign, Trump promised to deport Dreamers, a reference to people who came to the United States as children.
The Deferred Action for Childhood Arrivals program (DACA), announced by the Obama Administration in June 2012, allows qualifying young people who were brought to the United States as children to request that any removal action against them be deferred in the exercise of prosecutorial discretion. Texas Attorney General Ken Paxton and 10 other state attorneys general have written to Attorney General Jeff Sessions indicating their intent to challenge DACA in court unless the administration agrees to rescind the program by September 5, 2017. Against this backdrop, the Trump administration announced the decision to terminate DACA.
This is Personal:
Lorella Praeli: DACA is in a critical moment and the lives of more than 800,000 people will be affected. DACA is incredibly personal for many people in this country. My sister, Maria, is a DACA recipient and I often look at what she contributes to the family because of her access to a work permit. The things that we often take for granted like a driver’s license, social security card, or even renting an apartment mean everything to Dreamers. DACA gives Dreamers the ability to stabilize their lives and contribute to their communities.
The Legality of DACA:
Shoba Sivaprasad Wadhia: There are many questions as to whether DACA is lawful. Deferred action has operated in the immigration system for decades and is one form of prosecutorial discretion. Prosecutorial discretion refers to an agency, in this case, the Department of Homeland Security, deciding whether to enforce immigration laws against a person or persons. All recipients of prosecutorial discretion, including DACA recipients receive a temporary reprieve from deportation- what I sometimes call, “immigration purgatory.”
So, why is it lawful?
In 1952, Congress passed the Immigration and Nationality Act, and referenced prosecutorial discretion in several places in the statute. Importantly, Section 103 is where Congress delegated power to administer and enforce immigration law to DHS secretary. Other sections, such as 242(g), directly speak to deferred action and prosecutorial discretion.
Several regulations underscore that deferred action recipients can file for work authorization (Reagan administration, 1981): (stating that “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). This is the foundation used for DACA recipients to receive work authorization. In an open letter to the president, more than 100 law professors assert that the “executive branch has legal authority to implement Deferred Action for Childhood Arrivals (DACA 2012).”
Beyond the Law:
Shoba Sivaprasad Wadhia: The theory of prosecutorial discretion is two-fold. First, there is the economic factor. DHS has resources to deport less than 4 percent of estimated undocumented immigrants. Choices must be made – similar to how it works in criminal law. For instance, you would not prosecute every person that fishes without a fishing license. There is also the humanitarian dimension. In the past, the circumstances of being a primary caregiver, advanced or tender age, having a serious medical illness, or long-term residents in the U.S. were factors that informed who was granted deferred action. DACA recipients bear many of the humanitarian factors that have driven immigration deferred action for decades.
Lorella Praeli: Young undocumented persons trusted the federal government with their personal information. To turn around and have that information used against them is unsettling. It is vital that we sound the alarm and use professional tools to organize. There are many ways to take action, including participating in United We Dream’s Defend Dreams campaign. Now that DACA has been rescinded, many organizations across the country will set up clinics to help Dreamers. If you are an attorney this is a great way to volunteer your time and help Dreamers.