This is a guest post by Alan Desmond. Alan is a PhD candidate at the Law Faculty, University College Cork where he is working on a dissertation on the right of irregular immigrants in the EU to a legal status under the supervision of Professor Siobhán Mullally. He is an IRCHSS Government of Ireland Scholar.
On Friday the Obama administration announced a policy change that will allow a discrete category of irregular immigrant to avoid deportation and seek work authorisation in the US. The policy will apply to undocumented immigrants who
- arrived in the US before the age of 16
- have lived in the US for a minimum of 5 years
- are under the age of 30
- do not have a criminal record
- are high school graduates or currently in school or have been honourably discharged from the military
This group of immigrants is popularly known as the Dreamers, after the Development, Relief and Education for Alien Minors (DREAM) Act, a legislative proposal first introduced in 2001 and endorsed by the House of Representatives in 2010 but blocked in the Senate by Republicans. While the DREAM Act would have put its beneficiaries on a path to permanent residence, Friday’s policy announcement, whose eligibility criteria mirror those of the DREAM Act, only allows Dreamers to apply for a renewable two-year deferral of deportation.
The policy change builds on prosecutorial discretion guidelines issued by the Director of Immigration Customs and Enforcement (ICE) this time last year which called on ICE personnel to focus the agency’s limited resources on pursuing deportation of convicted criminals and repeat immigration violators. On the other hand, the guidelines indicated that ICE agents and prosecutors should favourably exercise their discretion not to seek deportation in the case of undocumented immigrants who pose no threat, particularly those who are family members of US citizens or have lived a long time in the US.
Both the guidelines on prosecutorial discretion, the success of which has been questionable, and Friday’s policy shift represent a piecemeal administrative approach to addressing the defects of the US’s immigration system, of which one of the most striking features is the presence in the US of up to 11.5 million undocumented immigrants. This figure is even more striking in light of the aggressive enforcement of deportation by the Obama administration which has resulted in removal from the US of over 1 million immigrants in the past 3 years.
Supporters of the piecemeal approach of using stop gap measures to plug some of the holes in the US immigration system argue that it is the best that can currently be done given the difficulty of securing bipartisan Congressional support for comprehensive legislative reform of the nation’s broken immigration system. Its detractors characterise the approach as an abuse of presidential discretion, intended to bypass Congress and secure a backdoor amnesty for “illegal immigrants.” Obama himself has noted that Friday’s policy change does not represent a permanent fix and repeated his call for Congress to pass the DREAM Act.
Not surprisingly, the decision to temporarily halt deportations of Dreamers was warmly welcomed by that group and its supporters, many of whom are drawn from the Latino population whose vote may be crucial for Obama in several contested states during the November presidential election.
The Dreamers engage in both a politics of victimhood, emphasising their innocence and blamelessnes in their parents’ decision to bring them to the US, and a politics of resistance, declaring themselves to be undocumented, unafraid and unapologetic during demonstrations in support of the DREAM Act. Of equal importance in winning support for their cause is their presentation of themselves as de facto citizens, a line which Obama took during the Rose Garden press conference on Friday.
These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents — sometimes even as infants — and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.
Put yourself in their shoes. Imagine you’ve done everything right your entire life — studied hard, worked hard, maybe even graduated at the top of your class — only to suddenly face the threat of deportation to a country that you know nothing about, with a language that you may not even speak.
The valorisation of the Dreamers’ claim to legal status in the US has, however, given rise to an insidious distinction between the deserving and undeserving irregular immigrant, the young hardworking assimilated immigrants without status who number up to 1.4 million, and the remaining, less deserving and less desirable irregular immigrants who number up to 10 million.
One way of eschewing such an unhelpful dichotomy and regularising the status of greater numbers of undocumented immigrants is to follow the suggestion of political theorist Joseph Carens who has posited that, once an irregular immigrant has spent a specified minimum period of time in a country, there should be an automatic transition to legal status. Of course, given that it has not yet proved possible to pass so relatively palatable a piece of legislation as the DREAM Act, Carens’s suggestion may be a dish that will never make it on to the menu.