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Despite Federal Ruling, Dreamers Fight for DACA

After years of policy flip-flops, what will it take to create a real path to citizenship for immigrants?

Activists protested around the country in September of 2017, after former President Donald Trump announced he was ending the DACA program.

Emmanuel, who requested GT not use his real name, was working this summer when his phone buzzed in his pocket. 

He works operating heavy machinery at a construction company in King City, and usually he wouldn’t answer his phone during work hours, but he recognized the number that popped up on his phone. 

His forehead damp from the July heat, he took a few steps away from the construction site and picked up the phone. 

“Is this Emmanuel?” his case manager asked. 

Emmanuel confirmed, wondering what document he would have to re-submit now. 

But his case manager’s voice sounded off, and there was a long pause before he started speaking again. Emmanuel started feeling nervous. 

“Unfortunately, the U.S. Immigration Services isn’t going to process your DACA application,” his case manager began. 

At first, Emmanuel thought there must be a mistake, one he could remedy with the right documentation or information. But as his case manager began to explain that all new Deferred Action for Childhood Arrivals, or DACA, applications were paused, Emmanuel realized this was bigger than a missing signature or receipt.

When Emmanuel hung up his phone, there was a pit in his stomach. He googled “Texas Judge DACA,” and scrolled through headline after headline about federal Judge Andrew Hanen ordering the government to stop granting new DACA applications. Although people who already had DACA status were safe from the ruling, Emmanuel and other first time applicants would be unable to change their status, even if they qualified. Words like “illegal,” “unconstitutional” and “unlawful” jumped out at him, and he felt heavy with disappointment.

As he drove home that day after work, Emmanuel thought about his family. He and his wife, who is an American citizen, were trying to buy a home to live in with their two-year-old daughter, but kept running up against legal obstacles because he was undocumented. Emmanuel had been looking forward to finally getting his license to be a truck driver, a job with more consistent work than the odd-job construction projects he worked on, but now that would be delayed for who knew how long. 

He thought of the nearly five months leading up to this moment, of the days he had taken off work—days that he didn’t get paid for—to drive to various offices to submit papers, and the hours he had spent filling out documents online.      

Perhaps the strangest part is that in his day-to-day life, Emmanuel feels like an American citizen. He has lived in California since he was three years old. He grew up here, his family lives here, his community is here—he actually forgets he is undocumented, until times like this when he is reminded that certain everyday privileges that citizens enjoy, like getting a license, aren’t available to him. 

“Let me ask you this: Now that we’re talking, would you think I wasn’t American?” Emmanuel asks me during our interview. He’s referring to his English, the way he speaks. Emmanuel uses phrases like ‘What’s up?’ or ‘You feel me?’ and there’s no trace of an accent when he talks. This might seem small, he says, but speaking like this comes naturally to him in a way that it never will to his parents, who came to California from Mexico in their twenties.

“I sound American, because America is all I’ve ever known,” he says. “I feel just as American as an American citizen.”

Yet Emmanuel remains in the limbo he has been in his whole life. His American identity is undercut by his illegal status—it’s the difference between how he views himself and how he is viewed. It’s a place of impermanence, of uncertainty. 

But even those with DACA status are in a type of limbo. While DACA continues to protect recipients from the risk of deportation (with caveats), and gives them the ability to apply for the jobs they want, it doesn’t provide a trajectory towards citizenship.  

Still, like every “Dreamer,” Emmanuel thinks of DACA as a step toward his ultimate goal of becoming an American citizen. But after so many ups and downs—Trump’s termination of the program in 2017, the Supreme Court’s reversal in June of 2020, Hanen’s ruling this summer—he’s beginning to wonder: Will he ever get there?

Origins of the DREAM

In order to understand how DACA became the fragile policy it is now, it’s important to understand how immigration became a sticking point in Congress, says Immigrant Law Professor Pratheepan Gulasekaram. Although it may seem hard to believe now, immigration has not always been a partisan issue, he says. 

One of the most comprehensive immigration reform bills was signed into law by former Republican President Ronald Reagan. Known as the Immigration Reform and Control Act of 1986, the policy gave legal amnesty to any immigrant who entered the country before 1982.  Nearly three million undocumented residents came forward for amnesty. 

Then in the ’90s, Democrat President Bill Clinton passed a series of restrictive immigration policies, and touted a hardline approach to illegal imigration in his 1995 State of the Union address to Congress. In fact, it was Clinton who essentially created the immigration enforcement system that exists today.  

“Immigration wasn’t really seen through the lens of partisanship,” says Gulasekaram. “Of course, it did have political valence at times, but the votes in Congress weren’t pure party-line votes.” 

In the ’90s, Tereza Lee—the inspiration behind what would become known as the the Development, Relief, and Education for Alien Minors (DREAM) Act—came to America at two years old. Her parents had fled South Korea in the wake of the Korean War. She was a talented pianist, and at age 17, Lee became the first inner-city child to play with the Chicago Symphony Orchestra. 

Teachers encouraged her to apply for top music universities, but she didn’t have a social security number for her applications. Lee was undocumented.  

With community support, Lee and people who knew her issued letters to Illinois’ U.S. senator Dick Durbin, a Democrat. What started out as a personal bill for Lee became legislation for other undocumented children, as students from all over came forward with similar stories. Durbin redrafted the legislation into what became known as the DREAM Act—legislation that would provide legal status to undocumented young people.  

The Senate was scheduled to hear the DREAM Act on Sept. 12, 2001. 62 Senators were slated to vote to pass the legislation. President George Bush was ready to sign it into law. 

But on Sept. 11, 2001, everything changed.  

“After the terrorist attacks of 9/11, the Republican Party could essentially frame any form of immigration, legalization or anything that isn’t hardline immigration restriction as something that is a vulnerability to the U.S.,” says Gulasekaram. “Throughout the early 2000s, you see a lot of the people who were Republican senators who supported things like the DREAM Act start to walk away.” 

In the coming decades, Democrats’ opinion gradually began to shift toward favoring increased legal immigration, while Republicans’ opinions stayed relatively unchanged, according to Pew Center Research. In 1994, only 32% of Democrats said immigrants would be an asset to the U.S., but in 2019, that number climbed to 83%

The Democratic Party also underwent a demographic change. In 1995, about a quarter of Democrats were non-white. Now, nearly half are people of color, with most of that growth composed of people from Latinx and Asian descent—two regions that also make up the largest percentages of immigrant growth in America. By contrast, only 17% of GOP registered voters are people of color. 

These changes move immigration from a largely non-partisan issue, to a wedge issue that can be the determining issue between winning or losing an election. 

A DACA supporter holds a sign at a rally in Washington DC on September 9, 2017, after President Trump announced that he would end the DACA program

Partisanship and Immigration 

By June of 2012, Congress had failed to pass the DREAM Act for more than a decade. Then-President Barack Obama was running for re-election, and his attempts at reforming immigration and pushing through the legislation had failed.  

The bill almost passed in 2010, but couldn’t clear the 60-vote threshold to pass a Senate filibuster. Starting in 2011, Republicans controlled the House of Representatives, meaning another attempt would likely end in failure.  

Trying to make good on his campaign promise to reform immigration ahead of the elections, Obama did something unexpected. He used executive authority to provide protection for immigrant children brought to America before the age of 16, through enforcement policies at the Department of Homeland Security. 

By bypassing Congress, Obama didn’t actually make DACA a federal law or act of Congress—he made it a form of prosecutorial discretion. 

“It’s a strange legal idea, but we actually see this happen every day,” says Matt Weisner, the Directing Attorney at Community Action Board’s immigration legal services program.

Since Immigration and Customs Enforcement doesn’t have the manpower, time or budget to deport everyone, enforcement would have to prioritize going after certain immigrants and not others. 

Weisner likens the idea to jaywalking. When a police officer sees two people jaywalking, an illegal offense in California, he or she will likely ignore it. That’s because there are more pressing public safety concerns happening to which they should be committing the resources. 

“It’s the same idea with DACA—‘We’re going to use our discretion to defer action, to defer deportation, against an entire class of people,’” Weisner says.

That’s also what makes DACA so vulnerable: it’s just a guideline for Homeland Security. It’s also why all former President Donald Trump had to do was wave his hand and say, “Let’s end DACA,” and his administration began the process of unwinding it. It’s why Federal Judge Andrew Hannan’s ruling in Texas was able to stop the federal government from granting new DACA statuses, a ruling that Weisner estimates paused the DACA applications of hundreds of hopeful immigrants in Santa Cruz County. The very process by which Obama enacted DACA is flimsy.  

But it doesn’t quite get at why Congress hasn’t been able to establish a pathway to citizenship. According a recent poll, 78% of Americans support a pathway to citizenship for undocumented children. Shouldn’t that show elected officials that, at least in regards to protections for immigrant children, the issue isn’t as polarizing as most immigration issues? Should it translate to more support for a permanent form of DACA that establishes a pathway to citizenship? 

“The fact that something has broad support amongst the American public doesn’t necessarily translate into why any individual member of Congress would vote or not vote for it,” says Gulasekaram. 

This is especially true, says Gulasekaram, in districts that are heavily gerrymandered (redrawn to favor one political party over another). There are also other factors, like wielding legislation as political leverage, that get in the way of passing something similar to the DREAM Act. 

“The DREAM Act often failed because, at the federal level, it became a piece of a trading puzzle,” says Gulasekaram. “Hard-line Republicans will include the DREAM Act if Democrats include more money for border enforcement, [those] types of negotiations.” 

Why the DREAM Act failed, how DACA came into existence and why Congress still hasn’t created a pathway to citizenship for undocumented children, despite broad public support across parties for this type of legislation, all reflect some of the most frustrating political practices. 

“I hear the phrase that immigrants should ‘get in line and do things the right way,’” says Weisner. “And I think the number one misconception that we experience as immigration policy experts is that for many people, there’s no line to get into. And that’s a problem that ultimately Congress needs to resolve.” 

Status Symbols

Alexandra, who also requested GT use an alias, applied for DACA in 2012, as soon as the program started. She was in the midst of applying to college, and in that regard, DACA came at the perfect time. DACA status would give her a work permit to help pay for college, and would also protect her from deportation.  

When Alexandra first learned of the program in high school, she was excited for the opportunity. But mostly, she was relieved for her parents. 

“I know me and my siblings are their hopes and dreams. Knowing we would have more opportunities, it helps make their sacrifices worth it,” Alexandra  says. 

Now, Alexandra re-applies for DACA every two years (DACA status expires at the end of two years), and is one of the more than 800,000 undocumented immigrants who have received temporary legal status from DACA since it was enacted in 2012. 

But the original excitement she felt when she first applied for DACA status has waned throughout the years, replaced by frustration, anger—and, at times, fear. Especially in the past six years, Alexandra says. 

Since Alexandra became a DACA recipient in 2012, DACA has been continuously challenged. Her status as a DACA recipient has been marked by moments of uncertainty, most notably when Trump announced his plans to terminate the program in 2017. Alexandra was studying Political Science as an undergrad at the University of California, Berkeley at the time. 

“You have no idea of how status affects your life, until you get to a moment and you’re like, ‘Oh, it actually affects so much,’” says Alexandra, remembering the fear she felt when she heard the news.   

Then, just a few years later in July of 2021, DACA received another challenge; this time, from Hanen, declaring the process by which DACA was established as illegal, and effectively pausing all prospective DACA applications.  

“When the Judge canceled everything, it was a mix of emotions,” says Alexandra. “I remember thinking, ‘At least DACA didn’t end, I’m safe.’ I was glad for that. But it was also horrible.”

For Alexandra, it was uniquely difficult. 

Part of her job is to help first-time DACA applicants fill out and submit their applications. This can take months, sometimes even up to a year, as her clients try to pull together the hefty fee of $495 for their application and find the necessary paperwork. The application’s requirement that is the most time-consuming is finding documentation that the applicant has lived in the U.S. since 2007. 

“That’s a lifetime of paperwork,” says Alexandra. “Can you yourself collect evidence proving that from 2007 until today you’ve been here?” 

Because of how long it can take clients to collect all the information for their application, Alexandra knew the details of many of her clients’ lives intimately—where they worked, what their situation was, how a DACA status would help them. Calling to tell her clients their application would not be considered was heartbreaking. 

“I was crushing people’s hopes and dreams. Crushing their family’s dreams,” says Alexandra.

The ruling was also another reminder for Alexandra of the impermanence of her status, another separation between her and someone who is a citizen. 

“Our status here is just a flip of a coin,” says Alexandra. “We know that DACA can be taken away at any moment.” 

There’s not much Alexandra can tell her clients about the future of DACA, except to hope and wait while the Biden administration tries to establish DACA as a federal regulation. 

“That’s where we are right now,” Weisner says. “The Biden administration is trying to get around the lawsuit because one of the criticisms of that federal judge in Texas was that they should have followed the federal regulatory process, and doing it in a less formal process was not lawful.” 

Weisner says there are still a lot of questions that are unanswered, like if the opponents of DACA will modify their lawsuits to challenge the new regulations. Another unknown is how soon we can expect the new DACA applications to start processing again—Weisner says it could take months. 

He advises people who were hoping to apply for DACA status to get their documents in order, and seek legal consultation to see if they might have other options.  

Regardless of your status, Alexandra says, at a certain point you get to decide for yourself what your identity is. 

“I think that at the end of the day, no matter what people say, you need to choose your identity for yourself, otherwise it’s a constant internal battle,” says Alexandra. “I don’t identify as a Mexican citizen. I’ve been here since I was two years old, my life is here. I identify as an American.” 

For information on citizenship and DACA, or help immigration-related legal services, contact the Santa Cruz Immigration Project, 406 Main Street, Suite 217, Watsonville, 831-724-5667.

7 Comments

7 Comments

  1. Mike

    December 14, 2021 at 10:21 pm

    Being here illegally for numerous years doesnt make a person american.

  2. Victor Wong

    December 11, 2021 at 5:52 pm

    If we keep the DACA recipients (or those who qualify), are we allowed to compel the repatriation of those who facilitate their smuggling?

  3. Rafael G.

    December 10, 2021 at 12:30 pm

    DACA is an illegally-established program. No amount of blabbering from Biden’s lackeys at the DHS will change that.

  4. Don Honda

    December 8, 2021 at 8:28 am

    FYI: Most DACA fees are paid by nonprofit orgs, universities and colleges, through state and local gov funding.

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