Dealing with DACA

During the last month, a New York judge ordered the federal government to restore the Deferred Action for Childhood Arrivals program to its original state, which means that recipients of this program can remain in this country and not face deportation. The general opinion seems to indicate that a fair, humanitarian but lawful, permanent solution is needed to resolve the situation of approximately 800,000 (official number, but actual number expected to be much higher) of these individuals.

On June 15, 2012, President Obama signed an Executive Order that initiated a program on August 15, 2012, called Deferred Action for Childhood Arrivals (DACA). He chose this approach rather than submitting a proposal to Congress because he knew that Congress would not support any version of DACA. This order covered all children under 16 years of age who had entered the country illegally whether brought by their parents or otherwise. According to immigration law, all of these arrivals are candidates for deportation.

Some of these arrivals have been in the country for many years and are adults now who have spent most of their lives in the U.S.A. Of the 800,000 DACA members, not all are adults; in fact, some organizations claim that about half of them may be under age, but this is controversial; other organizations claim that most of them are adults. Whatever the case, these people constantly live with the fear of deportation back to their country of origin.

The DACA order is not a law, and recent evaluations by the Trump administration and other legal organizations have raised the likelihood that DACA is unconstitutional.

The strongest argument in favor of congressional support for DACA is a humanitarian one. The counter arguments are more diverse: The individuals protected by DACA entered the country illegally, have benefited from free education and health care, and have been free to travel and work as if they were citizens. Even if some adults are currently paying taxes, the total amount paid is much less than what they have received in benefits. Besides, the argument includes that benefiting a group of individuals solely based on age becomes discriminatory and illegal. Why not treat all individuals that entered the country illegally the same way?

During the new administration, Congress will probably consider many topics that will have major impacts on the entire U.S. population, e.g., tax reform, health care, international trade, and immigration issues, which includes DACA. It is not clear whether an agreement in both chambers can be achieved on all immigration issues. DACA will eventually expire without congressional action. President Biden has signed a new executive order to basically keep the DACA in place, but again this is a temporary measure.

The future of DACA members thus ranges from one extreme to another. Congress can pass a law granting total amnesty or can take no action which could mean eventual deportation.

A simpler solution may be a proposal that DACA members be handled outside of the immigration package; that is, given 12-18 months to resolve their eligibility for remaining in this country. All DACA members would have to apply as any person that wants to enter the country legally. Those who meet normal immigration standards and want to remain the U.S. can stay. This screening process should be given top priority, expedited applications for legal immigration. Those who meet the requirements and decide to remain in the U.S. could do so “con la frente en alto,” i.e., with the head held high, without having to hide. They could feel that they have finally taken a legal step. This humanitarian approach would allow DACA members to live with dignity in the U.S., without fear of deportation, and, if they wish, eventually become U.S. citizens. This modest approach would likely require some congressional action and the president’s approval in order to survive challenges.