Law in Contemporary Society

The Argument Against DAPA?

-- By KevinS - 11 Apr 2016

On November 20, 2014, President Obama announced his Executive Actions on Immigration, which among other propositions set forth two critical changes to the present immigration system. First, the Executive Actions focused the Department of Homeland Security's enforcement priorities on removing aliens who posed risks to national security and public safety. Second, they created a new retroactive and affirmative relief for undocumented parents of lawfully present children (Deferred Action for Parents of Americans). For many, these actions were a much-needed step in the right direction. The former recognized that the category of "undocumented immigrants" was not a monolith of just "people who shouldn't be here," and the second reflected a humanitarian effort to keep children with their parents.

However, even these relatively modest changes to the Executive's discretionary agency policies were vehemently opposed. Anti-immigration rhetoric abounded almost immediately after the announcement, and it continues to be employed in the Republican primary campaigns. Given the strong backlash against easing the U.S.'s immigration procedures and the divisiveness of just the issue itself, I will give serious consideration to the objections raised against the two most recent immigration actions raised above.

Why is so bad to be here without permission?

In my initial draft, I suggested xenophobia and economic costs as two arguments raised against immigration relief. Upon revisiting these two, I submit that I don't have sufficient information on the economic argument to make any significant conclusion. With regards to xenophobia as an argument, the obvious objection is that, while it may be an explanation of anti-immigrant sentiment, it simply fails as a justification in and of itself. I now consider the utilitarian and equity arguments: extending relief to immigrants already unlawfully in the U.S. encourages rule breaking and is unfair to those who are waiting in line.

Immigration vs. Criminal Violations

First, let me dispel the notion that the DAPA program encourages rule-breaking. Like DACA, it is a retroactive and purely remedial relief with a cutoff date; you must have been already present in the U.S. on January 1, 2010 in order to qualify. This nullifies the ridiculous fear that immigrants are going to swarm to the U.S. and make babies here.

That aside, this deterrent argument smacks awfully similar to theories of criminal punishment. This juxtaposition of immigration and criminal violations is an important one, since I'm sure many think of deportation as a punishment for unlawful presence (heck, even the name "Homeland Security" associates undocumented immigrants with terrorists). But what is really being punished here? Criminal punishments are supposed to deter the activity, foster public safety, or reinforce public standards of morality. These justifications of punishment don't seem readily applicable to undocumented immigrants. At least in the DAPA context, deterrence has already been dispelled, and there are also strict requirements against parents with criminal records, which nullifies any public safety concerns. The justification that might hold any water would be the argument from morality: it's just "wrong" to be here without permission. This segues neatly into the second argument I wanted to discuss.

"This is OUR country."

The "line-cutting" argument has a stronger appeal, as it presents the issue in a schema we can all relate to. More importantly, given that the Visa bulletin has just become current for family petitions filed in 1995, it seems unfair to the petitioners who have been waiting for over 20 years to extend relief to those who just enter without inspection. Despite this appeal, this analogy is fundamentally misleading. The strongest opposition against immigration "line-cutting" isn't from the people in line; it's coming from the people on the other side of the gate. A better analogy might be that of a disgruntled property owner trying to exercise his right to exclude non-owners. In this light, the anti-immigration sentiment is seen for what it is: a misplaced entitlement that this country is "theirs."

The Special Case for Undocumented Parents

Notwithstanding the flaws in the arguments, there may be some valid government interests in opposing the Executive Actions. The government might have an interest in maintaining an orderly procedure for processing immigration applications, and, giving credit to Texas's argument in U.S. v. Texas, I admit that a new source of immigration applications would encumber an already strained system.

But the critical question is whether these interests justify separating a parent from their child? Sure, we might not like line-cutting but would we go so far as to kick out someone who joined in line to be with their kid? If the child is a U.S. citizen, is there not a government interest in his or her well-being? As I discussed in my first draft, the difference between an "alien"and a "citizen" may be as small as time and papers. Should that difference be allowed to separate an already established family in this country? These may be rhetorical questions in this context, but they are legitimate inquiries that an anti-immigration proponent should resolve before denouncing the DAPA program.

Concluding Remarks

The anti-DAPA concerns I've analyzed here are fundamentally misplaced. There is a misunderstanding as to deterrence effects and public safety (which manifests in statements that all immigrants are drug dealers and rapists). This may have been in part due to the categorization of immigration under the Department of Homeland Security. Perhaps the creation of a "Department of Immigration"or even returning immigration issues to the Department of Justice's authority may be warranted. At least then we can avoid playing "Which of these things is not like the others"with the DHS functions.

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r7 - 14 Jun 2016 - 01:38:08 - KevinS
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