—Michael A. Olivas
Tens of thousands of undocumented students are making their way through college without federal financial support and with little state financial aid available—only to find that they cannot accept employment or enter the professions for which they have trained. Cases of undocumented law-school graduates who have passed the bar are surfacing in California, Florida, and New York, and more will soon surface in other fields, too, as unauthorized students graduate from college. Seeing this brick wall, a number of immigration law professors wrote a letter to the president, urging him to use the administrative discretion available to him, to help undocumented college students who find themselves in the worst of all possible worlds. It appears this call was heard when, in June 2012, President Obama announced an expansive Deferred Action for Childhood Arrivals (DACA) policy, which is still in the implementation first phases.
Unfortunately, despite the excitement (and outrage from President Obama’s Republican opponents), this policy is not the stalled DREAM Act, which would have created a path to citizenship for some immigrants who came to the U.S. as children. The President’s courageous decision could not have accorded any more than he did, as any true reform will have to come from Congress, which has been reluctant to take up even the modest DREAM Act, much less the more comprehensive immigration reform so needed.
Gov. Mitt Romney has indicated his determination to veto any version of the DREAM Act, and the 2012 GOP platform urges deportation of these students. In reality, the President’s adoption of a “deferred action” policy is, to a great extent, old wine in a new wineskin. The policy does not grant legal-residency status, as the DREAM Act would, but only defers deportation for a renewable two-year period. Announcing the policy shows new political will, but it does not change existing law or create additional discretion.
Forms of prosecutorial discretion, including deferred action, have been available for many years (originating in the John Lennon deportation case, in the early 1970s). Nothing substantive has been added to existing authority. Indeed, in June 2011, the government announced that it would focus on deporting known criminals (the “gangbangers” as President Obama referred to them in a recent debate)—and urged prosecutors to use their discretion in considering the cases of students who would qualify for the DREAM Act. DACA has made regular provisions for these students to receive work authorization. Bear in mind, too, that this administration removed and deported nearly 400,000 unauthorized immigrants in the previous year. Even with those metrics, and the militarization of the U.S.-Mexico border, those who would further restrict immigration are not convinced that there has been enough enforcement—and see deferred action as a threat to the present situation. In August 2012, CIS employees filed suit to end DACA. There is a new application procedure, a good thing, and many details yet to be determined.
Deferred action is a vague and confusing process—and it will probably lead to unscrupulous notarios entering the picture. Under current regulations, individuals whose case has been deferred are eligible to receive employment authorization, provided he or she can demonstrate “an economic necessity for employment.” Deferred action can be terminated or renewed at any time at the discretion of the Department of Homeland Security. Many potential DREAMers will be hesitant to apply and “out” themselves to authorities, even in exchange for employment authorization, if the President is not re-elected. The delays occasioned by schools being overwhelmed with transcript requests make it clear that this has been a complicated and expensive process, one with uncertain contours. History may be on the side of the DREAMers, but they still find themselves in a cruel limbo not of their making, and with no clear way out of the thicket. This is a movement forward, and the program will transform many of the students’ lives for the better. But only the adults in Congress taking up immigration reform will truly serve their interests, and that of society.
Thirty years after the Supreme Court told us that undocumented immigrants deserve an education (Plyler v. Doe, 1982), we have yet to resolve this impasse. Deferred action is a step in the right direction, but until more cases are cleared and these students can take up work, it will be a program fraught with potential. While these students’ chances of being deported may be reduced, without employment authorization and a reasonable opportunity to regularize their status, they will still live in the shadows—with limited hope.
Michael A. Olivas is Professor of Law, University of Houston, and the author of No Undocumented Child Left Behind (NYU Press, 2102).