Immigration Article of the Day: Who Needs DACA or the Dream Act? How the Ordinary Use of Executive Discretion Can Help (Some) Childhood Arrivals Become Citizens by Susan B. Dussault
by Susan B. Dussault (Willamette), Lewis & Clark Law Review.
Over two million immigrants without legal status entered the country as children. These childhood arrivals have the constitutional right to attend public schools without charge, and billions of taxpayer dollars have been invested in their education. Offering these young people the opportunity to remain in the United States, use their education to contribute to the communities in which they have been raised, and become citizens would let the country realize its return on this investment. Yet thus far Congress, which has the exclusive power to create new paths to citizenship, has failed repeatedly to pass legislation that would enable childhood arrivals to earn some form of legal immigration status and eventually naturalize.
The Deferred Action for Childhood Arrivals program (DACA), which the Obama Administration launched in August 2012, partially addressed this issue by letting eligible childhood arrivals stay and work in the country for two-year renewable increments. In September 2017, the Trump Administration rescinded DACA, citing the Attorney General’s conclusion that it was an unconstitutional exercise of authority by the Executive Branch. Less than eight hours later, Trump stated that if Congress failed to legalize DACA within six months he would reconsider the issue.
If Congress fails to codify DACA or enact some form of the DREAM Act (which would let childhood arrivals earn permanent residence and eventually citizenship), it seems highly unlikely that the Trump Administration could, or would, reinstate DACA, given that its attorney general has declared the program unconstitutional. But there are other steps the Executive Branch could take to make it easier for childhood arrivals to legalize. Moreover, neither DACA nor the DREAM Act offers a complete solution: codifying DACA gives its recipients no legal status, and every iteration of the DREAM Act Congress has considered imposes requirements that disqualify many childhood arrivals. Therefore, regardless of what Congress may do, it is worth examining the unilateral and uncontroversial steps that the current administration (or a subsequent one) could take to help childhood arrivals become citizens. This Article identifies the discretion that the Executive Branch has with the military, cancellation of removal, parole, admissibility waivers, deferred action, and surplus immigration application fees. The Article then assesses the various ways the Executive Branch could employ that discretion to improve childhood arrivals’ access to the paths to permanent residence and citizenship created by Congress.
-KitJ