On August 15, the Obama administration launched the new federal program Deferred Action for Childhood Arrivals. It allows young immigrants living in the United States without government authorization to apply for “an exercise of discretion,” that is, a deferral of their would-be deportation and a two-year work permit—if they meet certain conditions.
The first day of registration saw huge crowds in major cities across the country. In Los Angeles, hundreds of youth were reportedly already lined up at 4:30 a.m. In Chicago, organizers of registration workshops had to turn away many of the several thousand who gathered, encouraging them to return later in the month. And in Houston, the lines extended into the streets, causing traffic jams.1
The turnout would seem to validate the praise many immediately heaped on the Obama administration when it announced the policy reform two months earlier. Glenn Greenwald at Salon.com, for instance, called it “a valuable and important (and plainly just) policy change.” Mexican president Felipe Calderón extended gratitude to President Obama on behalf of his country, characterizing it as a “humanitarian action” and “unprecedented.” It is “good news, which gives hope and a future for young immigrants,” said the Reverend Jim Wallis, head of Sojourners, a national Christian social justice organization. Meanwhile, Jose Antonio Vargas at Define American—a project championing a “bigger and more effective” conversation on immigration—described it as a “big, bold and necessary step in the road to citizenship.” He called upon his readers to thank Obama “for this principled and courageous act.”
Such responses—and the profound joy felt by large numbers of unauthorized migrants and their allies and advocates in the United States—is understandable. Any relief to, and openings for, even a fraction of the millions of people who live in constant fear and deep insecurity due to the threat of deportation is to be welcomed. But the happiness should not cloud our collective ability to see the serious limits to Obama’s policy change nor, more importantly, dilute the energies of those pushing for more far-ranging changes of a fundamentally unjust system.
The applicants must satisfy the following criteria: They must have arrived in the United States before the age of 16 and have been no more than 30 years old as of June 15; they must have been in the country continuously for at least five years before the announced policy; and they must be enrolled in school, a high school graduate (or its equivalent), or an honorably discharged member of the U.S. military. There is also an application fee of $360—for which an exemption is very difficult to obtain (and which might prevent some migrants from very low-income households from applying). Estimates vary as to how many people can potentially benefit from the policy—a whittled-down version of the Development, Relief, and Education for Alien Minors (DREAM) Act—but they hover around 800,000.
What’s also important is how many young people the policy’s parameters exclude. Take the age limit, for instance. The version of the DREAM Act voted on by the Senate in 2011 would have allowed people up to 35 years of age on the day of its enactment to benefit from the legislation.2 For reasons that are unclear, the Obama administration’s policy directive cuts this age by five years, eliminating what are likely tens of thousands from potential eligibility.
There is also the undoubtedly very large number of people already sent into exile under Obama’s record-setting regime of “removal.”3 Among them is Yannick Grijalba, someone who would otherwise seem perfectly suited to benefit from the Obama initiative, given its criteria. According to his profile in an Associated Press article published in June, Yannick arrived in northern California from Guatemala 11 years ago, speaks fluent English, and became an honor-roll student at his high school, where he was a member of the wrestling team. Now 18, he dreams of going to a university so he can study architecture.4
U.S. officials deported him to Guatemala just two days before the administration’s policy shift. Unfortunately for Yannick and countless others, there is no mechanism in the new policy to allow these deportees—who, were they still in the United States, would be eligible for this deferred-action process—to apply from abroad and reverse their status.
Like the DREAM Act, Obama’s policy renders those with criminal convictions ineligible. However, while the DREAM Act excludes those convicted of a state or federal offense punishable by more than one year of incarceration, Obama’s policy excludes those with any felony conviction. It also bars those with “a significant misdemeanor, three or more misdemeanors . . . [or who] pose a threat to national security or public safety.” (That said, the Department of Homeland Security states that it can override these restrictions in relation to a particular application when it determines there are “exceptional circumstances.”)
Who exactly is a threat to public safety or national security is a category with very elastic boundaries determined by whoever happens to be in the position of judgment. At the same time, given the huge numbers of youth of color who are arrested and charged for all sorts of frivolous matters or effectively labeled menaces to society, this lack of precision opens the door to a large number of denied applications. While the criteria for a “significant misdemeanor”—a new category invented by the Obama administration—is clearly defined on the U.S. Citizenship and Immigration Services website, it, too, casts a dark cloud over low-income youth of color, given their unjustly disproportionate representation among police arrestees and judicial convictions.5
What aggravates these problems, immigration lawyer David Bennion points out on the website Citizen Orange, is the lack of due process afforded to applicants.6 Although applicants can request a supervisory review of an initially rejected application, there is no right to a formal appeal. We will thus “likely see many of the same due process problems that we have seen with the prosecutorial discretion policy,” writes Bennion. This “discretion policy” was announced in June 2011 and was supposed to lead Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) to focus on its “enforcement priorities”—cases determined to be threats to national security and public safety. This should have meant that Yannick Grijalba was left alone.7
Under the new policy, Bennion asserts, “there will be no impartial adjudicator, no right to meaningful review of faulty decisions, and no formalized way to present and evaluate evidence or legal arguments.” This augments the risk involved in even applying for a work permit and deferral, especially for those whose presence DHS does not yet know about.
Even if someone’s application is successful, the resulting right to stay and work is for only two years. Moreover, that temporary right does nothing to protect family members—say, one’s parents or siblings—who are unauthorized residents.
What happens to successful applicants at the end of two years is anyone’s guess. What is certain is that the policy does not allow a pathway to legal permanent residency and citizenship. Many assert that the new policy opens a door that will be impossible to close, with the temporary semi-regularization of status eventually leading to more far-reaching changes. However, the future is unclear.
Obama suggested in his June 15 speech announcing the initiative that, because of the time-limited nature of the measure, Congress should pass the DREAM Act in 2012.8 So far, there is nothing to suggest that this will happen. But there are indications that Obama has reaped significant political benefit. While some in the immigrant rights movement have voiced skepticism of the initiative and continue to fight for more transformative policies, many Latino voters who were upset with his administration’s immigration policies and practices expressed a newfound willingness to embrace his reelection.9
This is good news for supporters of an Obama second term. But it provides little solace to the likes of Yannick Grijalba, now living in Guatemala City, jobless and without money, with an aunt, a pair of uncles, and two cousins, far away from his home in California, his dreams deferred and perhaps destroyed.
Joseph Nevins teaches geography at Vassar College. His latest book is Operation Gatekeeper and Beyond: The War on “Illegals” and the Remaking of the U.S.-Mexico Boundary (Routledge, 2010).
1. Anh Do and Christopher Goffard, “Thousands of Illegal Immigrants Seek Permits Under New Program,” Los Angeles Times, August 15, 2012; Julia Preston, “Illegal Immigrants Line Up by Thousands for Deportation Deferrals,” The New York Times, August 15, 2012.
2. DREAM Act of 2011, S.952, 112th Cong. (2011–12), Sec. 3, available at thomas.loc.gov.
3. Brian Bennett, “Obama Administration Reports Record Number of Deportations,” Los Angeles Times, October 18, 2011.
4. Adrian Gomez Licon and Alberto Arce, “Obama’s Deportation Stay Late for Some Immigrants,” Associated Press, June 17, 2012.
5. U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals Process,” available at uscis.gov.
6. David Bennion, “Third Time’s the Charm? Doubts About Obama’s Deferred Action -Policy,” Citizen Orange, June 15, 2012, available at citizenorange.com.
7. John Morton, Memorandum for All Field Office Directors, All Special Agents in Charge, All Chief Counsel, “Exercising Prosecutorial Discretion Consistent With the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” US. Immigration and Customs Enforcement, June 17, 2011, available at ice.gov.
8. Barack Obama, “Transcript of Obama’s Speech on Immigration Policy,” The New York Times, June 15, 2012.
9. See Paul West, “Obama’s Immigration Move Wins Support in Battleground States,” Los Angeles Times, June 18, 2012.
Read the rest of NACLA’s Fall 2012 issue: “#Radical Media: Communication Unbound.”