Elizabeth Kennedy is currently doing a Ph.D. in Geography at San Diego State University in the United States where she is working with unaccompanied minors. She has an MSc in Refugee and Forced Migration Studies from the University of Oxford.On Wednesday, 6 June, hundreds of young people in the United States had enough. Enough fear. Enough worry. Enough hopelessness. Their dreams demanded more. Unlike numerous politicians today, and like many civil rights activists before them, they were brave enough to risk everything to pursue the change they wish to see.
Together, they decided to occupy the Obama for America campaign office in Denver, Colorado. They were joined by others in Cincinnati, Ohio, Dearborn, Michigan, and throughout California in the following week. Campaign offices in North Carolina were preemptively closed on Thursday 14 June and silent demonstrations in front of Obama’s offices took place throughout the state of Georgia.
3 million students graduate from US high schools each year; 65,000 are undocumented. They are among 1.4 million children under the age of 18 resident in the country and without citizenship. Some are from Mexico, some from Central America, and others from countries further away.
Born elsewhere, most arrived before they could walk. Unlike their parents, they did not choose to come, but like their parents, they have worked hard to make the ‘American Dream’ a reality. Not for days. Not for months. But for years.
Their dreams now seek to be fulfilled. For most, they require a college degree. Doctors. Lawyers. Nurses. Teachers. But undocumented students, if even accepted, are often charged international tuition rates. With higher rates of poverty among immigrants, this ensures that most are either unable to attend or must incur large debt to do so.
Called DREAMers, they want a piece of legislation first introduced to Congress in 2001 passed: the Development, Relief, and Education for Alien Minors Act, abbreviated the DREAM Act. It aims to create a path to permanent legal status for children who (a) arrived here before their sixteenth birthday, (b) have lived at least 5 continuous years in the US, and (c) have completed either 2 years at a 4-year college or university or 2 years in the US Armed Forces.
Its passage has been close. The Act passed the Senate Judiciary Committee twice from 2002-2004 and was passed in the House as HR 5281 in 2010. That year, as had been the case in 2007, it did not receive the requisite 60 votes to invoke cloture in the Senate, although a bi-partisan majority did vote in favor both times.
In the context of an increasingly divided Congress and upcoming elections, such bi-partisan support has eroded. Former Republican co-sponsors and the original co-sponsor have withdrawn their backing in efforts to keep up with their party's rightward shift .
While the DREAM Act, like comprehensive immigration reform, has failed to become federal law, a handful of states have taken action. California, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Texas, Utah, Washington and Wisconsin allow undocumented students to attend state universities at in-state tuition prices.
Nonetheless, youth in all states have feared deportation, especially amidst the record-setting numbers of the Obama administration. He has overseen more deportations than any President before him, partially through Section 287(g) of the Homeland Security Act. Called Secure Communities, it allows local law enforcement officers to check the immigration status of everyone booked into a local or county jail. There, the fingerprints can be checked against those in the Department of Homeland Security’s national Database. While over 660 counties participate, the State of California and the nation’s capital have refused to take part.
Failure to navigate a broken immigration system
President Obama, who campaigned on comprehensive immigration reform, has continuously prodded Congress to enact reform but to no avail. He said on Friday, 15 June 2012: “in the absence of any immigration action from Congress … we've tried to … focus our immigration enforcement resources in the right places. … we have prioritized border security, putting more boots on the Southern border than at any time in our history.” Both Secure Communities and border militarization model efforts in the UK and Australia and have led advocates to call Obama hypocritical.
Obama continued: “We have focused and used discretion about whom to prosecute, focusing on criminals who endanger our communities rather than students who are earning their education.” The statement alludes to a controversial policy of “prosecutorial discretion” that John Morton, the Director of Immigration and Customs Enforcement (ICE), announced in June 2011.
Since then, ICE and the Department of Homeland Security (DHS) have been able to use “prosecutorial discretion” to decide who to prosecute and deport from the country. The administration’s stated emphasis was on removing gang members and convicted felons. Those with “strong ties to the United States”, like long residencies, families and children here, were deemed to be a low priority.
The administration’s attempt to work within a broken system, however, has proven a failure. Only half of the nearly 400,000 deported each year since 2009 have been convicted criminals, and over 100,000 parents with US-born children have been deported since 2008. The Applied Research Center documented the shattered families that have resulted (also present in the UK), in which approximately 5,100 U.S.-born children with deported parents were in foster care as of
January 2012. Rep. Lucille Roybal-Allard (D-CA) responded: “This report is the latest example of the terrible human toll our broken immigration system is taking on families. Tearing families apart like this is inhumane … We can't continue to claim to value families while deporting parents in the tens of thousands.
A Different Outcome? Prosecutorial discretion for DREAMers
DREAMers have led efforts for something that works. They have united and spoken out publicly since 2008. They’ve formed national organizations like ASPIRE Dreamers, DREAM Activist, National Immigrant Youth Alliance, and Immigrant Youth Justice League, which organize undocumented youths’ stories, letter campaigns and civil disobedience, largely through social media (which groups in the UK are attempting to model).
Observing years of failed attempts at immigration reform, DREAMers demanded an executive order from President Obama. But after begging Congress to pass the Act in 2010, on March 28, 2011, he publicly deferred to Congress in stating: “With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed.”
After closing tens of his reelection offices, and with Latino support waning before November’s election, DREAMers forced reconsideration. From the White House Rose Garden on Friday, 15 June, President Obama did what he phrased “the right thing.” He announced a two year reprieve from deportation for undocumented migrants under the age of 30 who arrived to the US before they were 16 years old. Effective immediately, even for those in deportation proceedings, his announcement also provides work authorization to those who can start applying in August. It does not provide in-state tuition rates, and it excludes both those who have not received a high school diploma or general education development (GED) certificate and those who have committed a crime.
While opponents have questioned the constitutionality of his announcement, President Obama did not issue an executive order. He simply gave explicit directions to narrow prosecutorial discretion to exclude DREAMers. As the Director of DHS, Janet Napolitano wrote in a memorandum that shortly preceded his Friday speech that undocumented youth are low priority cases. These children “lacked the intent to violate the law.”
DREAMers and their advocates are still waiting to see the results. After all, prosecutorial discretion has failed their parents, families and communities. ICE and DHS practices have changed little in light of new suggestions. And, no accommodations were made for youth already deported, nor is it yet determined if minor or juvenile convictions will exempt youth who are otherwise eligible. More than anything, it is an incomplete solution to a complex process.
United States Divided
Within hours of Obama's 15 June announcement that DREAM Act-eligible youth would not be deported, Arizona’s Maricopa County Sheriff’s Office, headed by Joe Arpaio who bills himself as the “country’s toughest sheriff,” delivered its own message. They stopped a van carrying 16 people and demanded all show proof of residence or citizenship. None could, including a little girl called “Rosita”. She will receive greater attention in the next article.
Although the van was not speeding and had done nothing suspicious, Officer Hegstrom claimed that the stop “was part of a human-smuggling investigation [they’d been conducting] throughout the Valley.” More likely, the principles of a controversial piece of legislation motivated their efforts.
Just as some states wanted all youth to be able to attend college, some states are frustrated that comprehensive immigration reform has not occurred. Arizona, the state with the largest number of detained border crossers after the fence went up (similarly positioned to Greece, Italy and Spain in the EU), devised its own solution: attrition through enforcement. Senate Bill 1070 would allow law officials to stop anyone they “reasonably suspect” of being undocumented to ask them for proof of legal status (Sec. 2(b)), make failure to carry proof of residency a misdemeanor crime (Sec. 3), make applying for a job if undocumented a crime (Sec. 5), and allow law officers to arrest someone on the suspicion that s/he is undocumented (Sec. 6).
Criticized for its potential abuse of due process and equal protection (similar to the EU context), the U.S. Department of Justice (DOJ) asked for an injunction after Arizona Governor Jan Brewer signed the legislation into law on April 23, 2010. A federal judge blocked the aforementioned provisions on July 28th.
In the two years it’s taken Arizona v. United States to reach the Supreme Court, Alabama, Georgia, Indiana, South Carolina and Utah created similar laws. While the DOJ has sought injunctions on the last four, Alabama’s HB56 was enacted a year ago. Its restrictive measures requiring children to present proof of citizenship to enroll in school harken back to Jim Crow law in the South and have challenged the Supreme Court ruling in Plyler v. Doe that all children are entitled to education. The harsh measures have also led to unfarmed fields and unstaffed factories and have seen hundreds of Latinos leave the state.
The Supreme Court's ruling in Arizona v. United States announced on June 25th, is, most likely, only the beginning of ending these states’ efforts. In a 5-3 decision, the Court decided that three of SB1070’s provisions cannot take effect, because they conflict with federal immigration law passed in 1996. Essentially, states are not free to make their own rules in the areas of registration, work authorization, or arrest.
Section 2(b), known as the “papers please” provision, did not, on its face, conflict with federal law, saying that for now, they’re willing to wait and see what happens: “At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume” that the provision conflicts with federal law, Justice Kennedy, the author of the majority opinion, wrote.
But justices also noted that the provision could be subject to additional legal challenges, depending on how the law is enforced on the ground. Indeed, 2(b) is already challenged in district court case. In Friendly House v. Whiting, filed in May 2010, 9 individuals and 14 civil rights and immigrant organizations asserted that “people will be subjected to immigration investigations after being stopped on the basis of their appearance and accent.” It will thus violate the constitutional guarantees of equal protection of the law, due process and protection against unreasonable searches and seizures.
While the presiding judge, US District Court Judge Susan Bolton waited to hear the Friendly House until after the Supreme Court ruling, she has suggested that she believes the law raises problems and should not be enforced.
DREAMing Comprehensive Immigration Reform
While many speculate that Obama made his 15 June announcement to obtain political support – which he did garner in battleground states – and to take control of the election agenda, President Obama continues to want more. He concluded June 15th’s announcement by saying: “[p]recisely because this is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments. And we still need to pass comprehensive immigration reform that addresses our 21st century economic and security needs."
He echoed this sentiment Monday, 25 June: the [Supreme Court} decision “makes unmistakably clear” the need for Congress to pass comprehensive immigration reform. “A patchwork of state laws is not a solution to our broken immigration system—it's part of the problem.”
Even Senator Marco Rubio (R-FL), long rumored to be a possible choice of Governor Mitt Romney's (R-MA) for the 2012 Vice Presidential nomination, agreed. He cautiously said: "[t]oday’s announcement will be welcome news …, but it is a short term answer to a long term problem.”
In an incredibly polarized political environment and economic recession, we must wait to see if the moment is right. Congress has not implemented comprehensive immigration reform since 1996, even though almost everyone acknowledges the pressing need. The immigration backlog has only risen, and the average wait time is now 20 years for obtaining citizenship – and very expensive.
With increasing evidence that the American Dream is dead, one thing is certain. For the dream to live, comprehensive immigration reform is needed.
This is the first article in a three-part series on migration to the United States. The next article centers child migrants and examines the concept of choice in their journey. The third article specifically examines the role country of origin plays in the treatment of unaccompanied minors who arrive at the Mexico-U.S. border.