Running head: LIFTING MY LAMP 1

Lifting My Lamp Beside the Golden Door: A Legal Analysis of the Implications of Removing

DACA

Emma J. Jacobs

Legal Studies Academy

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Abstract

This paper will discuss U.S. immigration policy with a specific focus on the Deferred Action for

Childhood Arrivals program. It includes analysis of the current policies, determining which laws

work, which laws do not, and the many misconceptions regarding these policies. Afterwards, this

paper addresses the current state of the DACA program, the arguments for and against

implementing comprehensive immigration reform, and contemplates the solutions to the many

problems within the U.S. immigration system. Finally, the paper concludes with a summary of

what has been discussed.

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Lifting My Lamp Beside the Golden Door: A Legal Analysis of the Implications of Removing

DACA

Since the creation of the Declaration of Independence, establishing America as a

sovereign country, immigrants have been drawn to U.S. shores. America remains a beacon of

hope for all immigrants seeking a better life and monumental opportunities. While these endless

possibilities benefit immigrants, the United States also benefits from their influence. For

example, during the Great Depression and World War II, Mexican immigrants were encouraged

to pursue occupations in U.S. agriculture because of the devastating amount of lives lost in the

war. Without their help, the country would have lost substantial revenue (Browne, 2001).

The current political climate of the United States emphasizes the lack of information

regarding border security and the amount of illegal immigration actually occurring. However,

border security is not so clear cut. The main measure of the effectiveness of border security is

how many illegal immigrants successfully enter the U.S, how many attempt to illegally enter the

U.S., and how much they are deterred. Contrary to public opinion, most experts conclude that

illegal immigration has decreased in recent years (Roberts, 2017).

In September of 2017, President Trump announced he was rescinding the Obama-era

policy of Deferred Action for Childhood Arrivals. After facing backlash for the decision, he

reneged and instead urged Congress to legislate an alternative in the next six months or he would

revisit the idea of rescinding the policy (Shear and Davis, 2017). DACA is an executive action

by President Obama that granted two year work permits and pledged not to deport immigrants

who came to the US illegally as children (Nguyen, 2017). The policy has just been renewed by

the Department of Homeland Security, and there has been no indication that the administration

will revoke work permits or prevent people from applying for DACA (Quinn Law Firm, 2017).
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With the looming removal of DACA, the United States’ current immigration policies fail to

protect immigrants, specifically those who contribute to the U.S. economy and those who had no

choice in coming to America.

Overview of US Immigration Policies and Misconceptions

Current Laws That Work for the US

The immigration policies that work best for America are the ones that marry the interests

of native-born citizens and immigrants searching for a better life. The United States allows

foreigners to work and live here with lawful permanent residency. They can even remain in the

US if they are unemployed. Immediate family of a citizen or lawful permanent resident is also

allowed to remain in the country, promoting family unification. Temporary Protected Status can

be given to those who cannot return to their home because of natural disasters, extraordinary

temporary conditions, or ongoing armed conflict. Deferred Enforced Departure protects those

living in the United States with unstable home countries; however, this is at the discretion of the

executive branch unlike TPS (American Immigration Council, 2016).

Current Laws That No Longer Work for the U.S.

Although there are some immigration policies that work for the United States, there are

many outdated or harmful policies that still exist. For example, undocumented immigrants

cannot receive financial aid from the government. There are some scholarships and aid available

at private institutions, but they have limited impact due to their incredibly high tuition fees. An

inability to afford a secondary education, something essential to finding a career, prohibits

undocumented students who have graduated high school to contribute to America’s economy. A

study by RAND, a nonprofit global policy think tank, found that, compared to an immigrant
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without a highschool degree, an immigrant with a college degree will pay more taxes and cost

the government less money (Gonzales, 2007).

There are also a few bills in the process of becoming laws that are not beneficial for

immigrants or American citizens, like the Criminal Alien Gang Member Removal Act which

passed in the House and is heading for the Senate Judiciary Committee. This law would allow

the government to detain or deport illegal immigrants suspected of gang membership even if they

have not been convicted or arrested for any crime (“GovTrack.us,” n.d.). If anyone in the U.S. is

afforded basic rights, even illegal immigrants, then this law is simply unconstitutional. If this law

is passed, the government could deport any illegal immigrant with no proof of any wrongdoing,

only suspected wrongdoing.

America’s current system, containing very few protections for those attempting to enter

the U.S., allows for “coyotes,” or the people who are paid to take people across the border, to

take advantage of those trying to enter. The journey is incredibly dangerous and strenuous;

border patrol is often forced to rescue the ones who cannot finish the journey which costs the

U.S. government large sums of money. Once they are across the border, they are smuggled in

cars up north where the drivers hike up their prices once they arrive at their destination, rape the

women, and rob the men (Browne, 2001). While the immigrants who are entering illegally are

aware of the risks, the current laws are not benefitting nor protecting anyone.

Misconceptions About Illegal Immigration

Throughout America’s history, native-born citizens’ attitudes toward immigrants, have

been negative. It is often assumed that immigrants will steal American jobs, the government’s

money, or their place at a university; however, these beliefs are unfounded. 71% of Americans
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believe the presence of illegal immigrants increases crime (Miller, ed., 2006). Ruben Rumbaut, a

professor at UC Irvine, says,

The misperception that immigrants, especially illegal immigrants, are responsible for

higher crime rates is deeply rooted in American public opinion and is sustained by media

anecdotes and popular myth. This perception is not supported empirically. In fact, it is

refuted by the preponderance of scientific evidence. (2011)

Although illegal immigration has increased, especially in border states, crime rates have

decreased. In fact, the likelihood a native-born male citizen will be imprisoned is five times

higher than a foreign-born male (Barry, 2011).

Many politicians are elected to public office by taking advantage of everyday Americans’

fear, even when these fears have no factual basis, like the fear of immigrants stealing US jobs.

The amount of immigrants in the American labor force has tripled from 1970 to 2005, while the

amount of native-born citizens in the workforce has been declining due to a lower birth rate. It is

projected that the American labor force growth will be entirely due to immigrants in the next

twenty years. While this does prove immigrants are a major part of the workforce, it refutes the

idea that they are “stealing” American jobs; they are simply filling in the gaps (Gonzales, 2007).

These immigrants, especially current DACA recipients, are also not just doing the jobs

Americans do not want to do, though Brookings Senior Fellow Vanda Felbab-Brown says

undocumented immigrants do tend to work more physically demanding and unpleasant jobs.

Compared to the 28% of immigrants who arrived before 2011 who had a college degree, now

48% of immigrants who arrived after 2011 have a college degree. Also, a fourth of entrepreneurs

and a fourth of investors in America are immigrants, with almost half of new firms hiring at least

one immigrant to be in a leadership position (Hoban, 2017). In response to the fear that
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immigrants are stealing American students’ places in universities, legislation that allows

undocumented immigrants who go to public schools to qualify for in-state tuition, has increased

school revenue instead of draining the educational system and has not resulted in a major influx

of new students. The legislation only affects a minority of immigrants who can afford college

without financial aid, but it still provides more money to the school (Gonzales, 2012). While the

majority of Americans who believe granting illegal immigrants citizenship will result in more

undocumented workers are correct in their assumption (Miller, ed., 2006), they are ignoring the

countless benefits of immigration and are fueled only by their unfounded fears.

The Situation Surrounding DACA

President Trump and his administration announced in September 2017 the Deferred

Action of Childhood Arrivals program would end in six months if Congress does not legislate an

alternative. DACA was created in 2012 by President Barack Obama through executive order.

The program permits children who were brought to the United States illegally before the age of

16 to avoid deportation and remain in the country. They had to be under 31 years old in 2012 and

had lived in the country since June 15 with no criminal record. They also must be enrolled in

school or the military. DACA recipients can renew their status every two years. Currently,

800,000 people receive DACA privileges so the program is widely used. The program was

created because Congress could not find the common ground necessary to pass legislation to

protect children brought illegally by their parents. Trump’s decision to place the burden once

again on Congress to pass an alternative into law makes it almost certain the DACA program

will end because of Congress’ inability to act on the issue (Gonzales, 2017).

Republican Senators Thom Tillis, James Lankford, and Orrin Hatch proposed the

Succeed Act in place of DACA. The bill is meant to provide people currently using DACA with
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a way to obtain citizenship. It has received positive reception from the White House, with an

endorsement from Trump. The path to citizenship is narrower and more complicated, contrary to

the DREAM Act, which cannot seem to be passed. The bill includes a total of 15 years to apply

for citizenship, requires numerous background checks, expands the categories of crimes that

would make someone ineligible for permanent residence status, refers to a process of “extreme

vetting,” would ensure Dreamers could not sponsor other family to come into the US until they

obtain citizenship, and prevents “chain migration.” This bill seems to be the conservative

approach to the DACA issue while the DREAM Act is the liberal approach. The DREAM Act

was first introduced in 2001, but was introduced in 2017 with a new provision. The bill would

provide permanent resident to status to immigrants who were brought to the US illegally as

children by their parents. They must have lived continuously in America for the last four years

and were 17 or younger when they arrived in the US, have never been convicted of any federal

or state offense punishable by more than one year imprisonment, and be going to college,

graduated from high school, or enrolled in secondary school or a program that assists students in

getting a GED or diploma. Unfortunately, the DREAM Act has yet to be passed (Nguyen, 2017).

Arguments Against Reforming Immigration Policy

While a majority of Americans believe immigration policy should be reformed, there is a

small group of people who believe the system works the way it is supposed to and the DACA

program should be discontinued. The Republicans in Congress specifically have little to no

interest in attempting comprehensive immigration reform as it does not tend to benefit them in

anyway (Council on Foreign Relations, n.d.). Also, President Trump has poisoned the

immigration debate by promoting racist and incorrect ideas about illegal immigrants, which in

turn makes it harder for Congress to truly consider reforming immigration policy. In campaign
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speeches Trump has said, “When Mexico sends its people, they’re not sending their best.

They’re sending people that have lots of problems with us. They’re bringing drugs. They’re

bringing crime. They’re rapists. And some, I assume, are good people,” and “They’re really bad.

You have people coming in, and I’m not just saying Mexicans, I’m talking about people that are

from all over that are killers and rapists and they’re coming into this country” (2016).

Whenever the idea of reform is brought up, the debate becomes more about the morals of

immigrants rather than how much they do for America. Most likely, in order for legislation to be

passed replacing DACA, conservatives will call for more border security and fewer benefits for

anyone who came to the United States illegally (S. Yale-Loehr, Personal communication,

November 1, 2017). Furthermore, any massive overhaul of immigration policies will result in

mistrust from American citizens. In an interview with the New York Times, Marco Rubio

learned from trying to push major immigration reform that U.S. citizens distrust any substantial

policy change from the government which means most Republicans will advocate for smaller

policy changes that build up over time. To delay the implementation of comprehensive reform,

Republicans tend to argue the need to secure the borders first; however, the discussion rarely

goes deeper into what their definition of “secure” is (Waldman, 2014).

Arguments for Reforming Immigration Policy

Court Cases

DACA or the Deferred Action for Childhood Arrivals program, implemented in 2012,

was created to protect the children of illegal immigrants, who came to the United States before

their 16th birthday, from deportation. In 2014, a similar program was implemented by the

Department of Homeland Security, Deferred Action for Parents of Americans, that was meant to

protect the parents of citizens and permanent legal residents from deportation. Texas, among
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other states, sued the Obama administration, claiming that DAPA violated the Administrative

Procedure Act and that it was “arbitrary and capricious.” Their argument was that the program

could not be implemented because the Department of Homeland Security did not engage in the

public process called “notice and comment.” The use of “public comment” is meant to allow the

public to have a say in decisions the government makes. The APA requires agencies to provide

ways for public participation in the rulemaking process. Texas also argued that DAPA violated

the Take Care Clause of the Constitution which states that the President’s job is to enforce the

law. The US Court of Appeals ruled that Texas had standing because first, the implementation of

DAPA would financially impact Texas, and second, the order violated the Administrative

Procedure Act. The Obama Administration appealed and the US Supreme Court agreed to hear

the case. They tied four to four and eventually made the decision to hold the lower court’s

decision. DACA was implemented without violating the Administrative Procedure Act and,

since it was implemented in 2012, states have already adjusted to the extra costs of issuing more

licenses and other things. The courts did not affirm the argument that DAPA violated the Take

Care Clause of the Constitution. One argument for DACA’s unconstitutionality is that it is out of

the President’s realm of authority, but no court has ever confirmed this including the Supreme

Court (United States v. Texas).

In Plyler v. Doe, the question was asked whether the revised Texas law that allowed the

state to withhold funding from school districts that educate illegal immigrants violated the Equal

Protection Clause of the Fourteenth Amendment. The court decided that although illegal

immigrants and their children aren’t citizens of the US, they are still people and are afforded the

protection the Fourteenth Amendment provides. They determined that this violated the

Fourteenth Amendment because it gave children of illegal aliens a severe disadvantage and
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Texas could not prove that the law served a “compelling state interest.” The Equal Protection

Clause “provides that no State shall deny to any person within its jurisdiction the equal

protection of the laws." In this case, an illegal alien is still considered a “person within

[America’s] jurisdiction.” The statute also violates the Due Process Clauses of the Fifth and

Fourteenth Amendments. The statute causes lifetime hardship for children of illegal immigrants,

who had no influence over their parents’ actions, by withholding their education (Plyler v. Doe).

This case maintains that illegal aliens are protected by the Constitution, and their children are

entitled to the right to an education. The logic used to defend both of these ideas can be applied

to the defense of DACA.

Trump is facing five lawsuits after only three weeks since Jeff Sessions’ announcement

about ending DACA. The policy is being defended in one lawsuit by 15 states, including

Virginia and DC. These states claim rescinding DACA would violate the Fifth Amendment and

the Administrative Procedures Act. It also alleges that rescinding DACA was just one example

of Trump's racist comments about immigrants coming to fruition. New York’s attorney general

states that it would cost “hundreds of thousands of the States' residents, injure State-run colleges

and universities, upset the States' workplaces, damage the States' economies, hurt State-based

companies, and disrupt the States' statutory and regulatory interests.” Another lawsuit is being

filed by the University of California, directed toward the Secretary of Homeland Security Elaine

Duke. The suit alleges the decision violates the rights of the school and its students because the

school would lose vital students and community members since over 4000 of their students are

illegal immigrants. They also allege the decision violates the Due Process Clause of the Fifth

Amendment. A third case is being filed by attorney generals in California, Maine, Maryland, and

Minnesota. It claims the decision violates the Regulatory Flexibility Act because the public
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wasn’t given proper notice before the announcement. NAACP is also taking legal action by

suing President Trump, Attorney General Jeff Sessions, US Citizenship and Immigration

Services, US Immigration and Customs Enforcement, and DHS for “unlawfully reneging on their

promise to protect young, undocumented immigrants of color living in the United States.” Six

DACA recipients are suing for the Northern District of Columbia, labeling the decision to end

DACA as a “broken promise.” Trump believes phasing out DACA will allow Congress time to

write new legislation regarding Dreamers; however, a group of conservative state attorneys

general threatened Trump with a lawsuit if DACA was not rescinded by September 5 (Giaritelli,

2017).

Problems Within the System

One of the many problems within America’s immigration system is the complexity of

becoming a citizen. Many believe it is easy to immigrate to the United States; however,

immigration law is incredibly complex, second only to tax law. It also has not been changed

since 1990, while the world has changed dramatically. Furthermore, green cards are often

conflated with citizenship, but the reality is a green card comes first then citizenry. It is

incredibly difficult to apply for naturalization. An applicant needs good moral character, must

read, write, and speak basic English, must have been a permanent resident for over five years,

and the list goes on. It is easy to see why desperate parents would bring their children here

illegally to give them a better life as soon as possible. The years that would be spent waiting for

citizenship are formative for a young child. Although many conservatives believe those who

acted illegally should not be rewarded, they are misinformed. About half of immigrants entered

the United States legally and overstayed, rather than entering illegally and not contributing to

America. There is no way the United States has the financial resources to deport all 11 million
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people using DACA and without it, employers can take advantage immigrants. If employers had

knowledge of an immigrant’s illegal status, they could force them to work for lower pay using

the threat of deportation. Finally, the notion that illegal immigrants are a burden, specifically on

border states, is false. A comparison would be someone from Virginia moving to California.

California would never deem this person a “burden” since they would be contributing to their

economy and well-being. Illegal immigrants would be doing the same (S. Yale-Loehr, Personal

communication, November 1, 2017).

Solution

Due to the lack of factual and unbiased discussion about immigration policy and DACA,

Congress most likely will not act. With Republicans, who rarely pursue immigration reform,

currently dominating the executive and legislative branch, it will be almost impossible to obtain

bipartisan compromise like passing the Dream Act. However, in the next four years, everyday

Americans can help to bring about or speed up the process. First, there must be more careful

discussion about immigration. The amount of false information and prejudice seeping into the

immigration debate is part of the reason it is hard for Congress to agree. Facts and statistics need

a place in this debate rather than biased opinions. Second, protests need to be started from the

ground up, forcing Congress to act. The protests must demand Congress to make the process of

obtaining citizenship less difficult and to legislate an alternative to DACA. Third, any state laws

promoting anti-immigration and discrimination must be challenged in court (S. Yale-Loehr,

Personal communication, November 1, 2017). Fourth, border security must be honestly and

deeply assessed and treated as an important responsibility. Then the data gathered from this

assessment needs to be used to find solutions to the many problems existing at the border

between Mexico and America (Roberts, 2017). If Congress refuses to act, the American people
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must take it upon themselves to defend the rights of immigrants, especially DACA recipients

who had no choice in coming to the U.S. and contribute greatly to America’s economy and well-

being.

Conclusion

The U.S. immigration policy debate continues to be dominated by misconceptions about

illegal immigrants and a lack of facts and statistics regarding the effects of immigration on the

lives of American citizens. This, in turn, contributes to Congress’ inability to pass

comprehensive immigration reform and an alternative for the Deferred Action for Childhood

Arrivals policy established through executive order under the Obama administration. While there

are some who believe U.S. immigration policy works well as it exists now, research

overwhelmingly supports the notion that it does not. Current policies promote anti-immigrant

sentiments by encouraging deportation, do not protect those who have entered illegally and are

taken advantage of by their drivers, and do not reward the immigrants who are contributing to

America’s economic and social well-being. Furthermore, the Trump administration’s decision to

slowly wind down the DACA program punishes hard-working immigrants whose only home is

America. These immigrants were brought to the U.S. illegally by their parents and grew up

knowing only this country. They deserve the right to pursue a secondary education with the help

of financial aid, have a well-paying job, and contribute to the society in which they were raised

in any way they choose. However, simply reinstating the policy of DACA is not enough. An

alternative must be legislated that grants them the rights they deserve. Dreamers should not be

punished for their parents’ actions. To achieve this, American citizens must be vigilant. The only

way to force Congress to act and protect immigrants is through litigation, protest, and factual,

unbiased discussion.
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