DACA and the Compassionate Rule of Law

The Deferred Action for Childhood Arrivals program has been the subject of much discussion, by politicians, policy experts, academics, journalists and others, since it was announced in June, 2012 by President Barack Obama. While critics of the program have warned of it as an exercise in executive overreach and a violation of the rule of law, its supporters have defended it as a reasonable, compassionate concession, one which enjoys overwhelming public support, until lawmakers find a more permanent solution.  

DACA provides work permits and temporary protection from deportation to some of those members of the undocumented population who were brought to the United States as children, a group also known as DREAMers. The program requires that its recipients were under 30 years of age by June, 2012, had arrived in the U.S. before their 16th birthday, have been resident since 2007, attending school, enrolled in college or honorably discharged from military service, and have not been convicted of a felony or other serious crime.

By Gráinne McEvoy is an Irish Research Council Postdoctoral Fellow at Trinity College, Dublin, and is currently writing a book on American Catholic social thought and immigration policy in the 20th century.

DACA-eligible are therefore a specific, narrow and, perhaps most importantly, very sympathetic group. By September, 2017, almost 800,000 of an estimated 1.7 million eligible individuals had presented themselves to the government, paid a $465 application fee, and been approved for protection, for a two year term, under the DACA program. They were not provided with a pathway to citizenship nor legal status, but were designated as lawfully present in the U.S. for a specific period of time.  (See: Why the Need for DACA – Further Information and Reflection.)

DACA’s political stakes increased dramatically in September, 2017 when Attorney General Jeff Sessions announced that the program would be wound down. Sessions explained that the government would accept no new applicants, nor issue renewals to existing holders who would start to lose their protections from March 6, 2018. Calling on Congress to act, President Trump revealed his administration’s intention to use DACA as a bargaining chip with which to compel Democrats to accept the more extreme aspects of its immigration agenda, including securing funding for a border wall and measures to reduce legal immigration. (The Administration is now doing something similar by separating children from their parents as they attempt to enter the country without proper authorization.)

Despite overwhelming popular support from across the political divide, the Administration’s decision has thrown the fate of DACA recipients into confusion. Against the backdrop of legal and political wrangling, the protections in place for tens of thousands of individuals have already been allowed to expire. 

The history of Catholic thinking on the nation’s immigration policies provides us with ways to understand what is at stake for DACA recipients, and presents arguments for the program’s continuation that seek to approach the issue with pragmatism and compassion.

This perspective helps us to consider the feasibility of the often heard argument that concessions to any group within the undocumented population is a violation of the “rule of law,” a phrase Attorney General Sessions used four times in his statement last September. Those who support the Administration’s decision maintain that leeway given to anyone who broke the rules, no matter how young they were at the time, would be an opening wedge to further abuse of the nation’s laws.

For almost a century, Catholic thought on immigration has asserted that sovereign nations have a right and a responsibility to control immigration in ways that protect the moral and material wellbeing of their people. This supports the position that laws are not immutable or timeless. Rather, they are amended or repealed as a matter of course in order to accommodate the actual circumstances and new realities affecting the lives of the nation’s citizens and residents. 

In the case of the DACA-eligible, the most salient of these new realities is the degree to which their lives are embedded in American communities, families, schools, and places of work. For the majority of these young people, this has been the case for as long as they can remember. The average DREAMer was only six years of age when they arrived in the U.S. Today, almost two thirds are younger than 25 years old, with another third aged between 26 and 35 years of age. Seventy-two percent are in higher education and 90 percent are employed, many in better paying jobs than before receiving DACA. Many have started to establish families of their own. Seventee percent of DACA recipients are married to a U.S. citizen and 20 percent have at least one U.S. citizen child. While DREAMers live throughout the country, the majority is concentrated in specific states and locales. One third of DACA recipients live in California, with 13 percent of the total residing in Los Angeles alone. They are being educated in American colleges, participating in the workforce, paying taxes, and supporting their families. These are the actual circumstances and realities that should inform a rational, pragmatic, and humane rule of law.     

For at least a century, American Catholic social teaching on migration has also emphasized that immigration law must, as an imperative, protect the family, the central unit in a secure and just society. It has also held that the law should seek to ensure socio-economic stability and security for families and individuals, both citizens and immigrants. Stripping DACA recipients of their protections plunges this group, their families, communities, colleagues and employers, into a state of instability, creating an atmosphere of alienation and constant fear of the threat of deportation.

Catholic representatives have historically opposed such approaches. In 1929, Bruce Mohler  (Director of the Immigration Bureau of the National Catholic Welfare Conference, a predecessor of the U.S. Conference of Catholic Bishops) charged that a proposed deportation bill “bristles with brutality, and since it could apply to the “parents, husbands and wives of American citizens,” it would “cause great hardship and separate many families.” In 1935, his colleague Sarah Weadick called for amendments to a proposed deportation bill which, she pointed out, would classify those who had entered the country illegally as a “permanently unassimilable class” who had “no respect for our laws.” The law, Weadick argued, should exercise forgiveness to those who “may be able to show over a period of years that they have completely reformed, and are now law-abiding citizens and who may have acquired families in this country.” These historical, social thought-based critiques find echoes in the statement made by the USCCB last September, which warned that the administration had caused “unnecessary fear for DACA youth and their families,” who had “lived out their daily lives with hope and a determination to flourish and contribute to society.”

Any discussion of the fate of the undocumented must be careful not to create categories of the “deserving” or “undeserving,” or to place blame for the plight of the DREAMers at the feet of their parents. Our history and our painful present reveal how few choices a broken immigration system leaves those mothers and fathers desperate to protect their children from poverty, exploitation, and mortal danger. DACA recipients command overwhelming public sympathy, which makes playing with their lives in a game of political brinksmanship all the more callous and unjust. Within a democratic nation, the expectation of compliance with the “rule of law” demands that such law be formulated with justice, compassion, and reason. We can only hope that those in power begin to embrace these guiding principles before further damage is done.

Why the Need for DACA – Further Information and Reflection

Historians, political scientists, and other experts have sought to explain the historical and legal context within which so many young people have come to find themselves living in America without papers, tackling common misconceptions about the status and lived experience of the undocumented in American life.

Historians, for example, have sought to provide a fuller picture of how decades of federal immigration policy has largely created the undocumented problem. Legal experts have explained the improbability of being able to legalize one’s status once already in the country illegally, regardless of length of residency. Scholars of politics and diplomacy have argued that U.S. foreign policy in certain countries has actually helped to create a migration crisis in the Western Hemisphere, placing responsibility back upon the U.S. to show more generosity toward migrants.

These discussions deserve our attention, and suggestions for some further reading can be found below:

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