My Thoughts on the DACA Legalization Debate

I regularly answer questions about immigration on several websites, including Quora. On January 31, 2018, I came across an interesting question that I felt warranted a long answer and, now, a blog post [PDF version].¹

The question read as follows: “Why does Trump plan to give citizenship to illegal immigrants over immigrants?” The question interested me because much of the debate over the ultimate disposition of DACA beneficiaries, and more broadly, “dreamers,” has been focused on the importance of not punishing individuals who were brought to the United States at a young age through no fault of their own. Now, to be sure, I favor legalization for such individuals who have otherwise stayed on the right side of the law and who are either engaged in studies or work.

However, the question brings up an interesting counter-point. Obtaining legal status and, ultimately, citizenship, is an arduous process in most cases. In some of the family-sponsored and employment-based preference categories, there are beneficiaries of approved immigrant visa petitions who have been waiting for years for the opportunity to legally apply for an immigrant visa or for adjustment of status. Furthermore, because those who would be legalized in any iteration of the “Dream Act” were brought here illegally, there are obvious concerns that such legislation would ultimately have the effect of incentivizing future illegal immigration, a problem that I have discussed previously regarding the 1986 legalization [see opinion blog].

With that in mind, I will condense the key points from my Quora answer and elaborate on them in this post.

Why Legalization is Desirable

First, while I noted that I was sympathetic to the premise of the question, I think it is important to note that President Trump is not proposing to give legal status to those who came here illegally of their own volition. Instead, I wrote that he proposes giving legal status to individuals who were brought here at a tender age and not of their own volition. I have seen many such clients myself who were brought to the United States as young children and who now do not so much as speak the language of their countries of origin. For these individuals, unlike those who come to the United States illegally at an older age (including even some individuals who were covered by DACA), the United States is truly the only country they have ever known. It is true that they are, under the law, in the United States illegally. However, it is also true that not every individual who is in the United States illegally came under the same circumstances or presents the same questions for us today.

Second, legalization for those covered by DACA and some number of similarly-situated individuals has broad public support — for good reason. It is obvious that these individuals — provided that they do not violate laws unrelated to their illegal entry and subsequent lack of legal status — are never going to be priorities for immigration enforcement. For one, the Department of Homeland Security (DHS) has more pressing priorities. For two, the public support would never exist for such an initiative. Thus, the alternative to some form of legalization is not necessarily enforcing the immigration laws to their maximum extent against these individuals; rather, it is allowing them to remain in the United States with no immigration status but with limited opportunities. Individuals without status are not authorized for employment, not authorized for study, and would accordingly have difficulty earning a living. Furthermore, although the DHS would be unlikely to begin targeting such individuals en masse, they would live with the knowledge that they could be picked up for immigration enforcement at any time.

What is more, without having any legal status as aliens who entered without inspection, these individuals are unable to seek adjustment of status, excepting those rare individuals who would be covered by a DACA legalization bill as the immediate relative of a U.S. citizen. In a sense, you could say that these individuals have been in a state of limbo — not priorities for removal but with no plausible path to legalization.

For these reasons, it seems obvious to me that most of the individuals covered by DACA, and some similarly-situated individuals who were not covered by DACA, are not deserving of punishment under our immigration laws. Those who commit offenses that would otherwise render them subject to removal separate from their own lack of status should be removed. But otherwise, individuals who were brought to the United States as children through no fault of their own and who otherwise abide by the laws of the United States deserve some form of legalization. Contrary to the suggestion in the phrasing of the question — sympathetic as I may be to the premise — the individuals described above should not be grouped with adults who cross the border illegally, overstay their visas, or otherwise act in such a manner than renders them subject to removal from the United States.

Against a “Clean” Dream Act

This brings us to part two of my lengthy answer to the first question. Here, I explain that, although most of the individuals covered by DACA and some similarly-situated individuals deserve legalization, the details of this legalization are important. After painting such a sympathetic portrait of these individuals, one may think that I agree with the position of the majority of congressional Democrats, and even a good number of Republicans, that we should pass a “clean” Dream Act. For the purpose of this article, I will define a “clean” Dream Act as legalization with a path to citizenship for many of the individuals described above along with no real substantive changes to the immigration system. Any proposal that suggests only modest amounts of funding for border security (Graham-Durbin) or for a border study (McCain-Coons) count as “clean” Dream Act proposals in my book. Here, I will explain why passing a bill that provides for legalization with no meaningful structural changes to the immigration system would be bad policy.

Any form of legalization for individuals in the United States illegally has the potential to further incentivize illegal immigration. Why so? It creates the perception, justifiably, that coming to the United States illegally may be forgiven in the long run. Thus, parents considering smuggling their children into the United States could understandably see DACA legalization as a sign that such smuggling may be rewarded in the future with a path to citizenship for them and their children. A “clean” Dream Act would solve the problem of illegal aliens who were brought to the United States as children, but it would make it exceedingly likely that we will be dealing with the same problem with hundreds of thousands of new cases in the near future. The goal of legalization for current cases must be to ensure that this is the last time any such large-scale legalization will be necessary. Here, we must learn the lesson of the 1986 legalization, which for whatever its merits, proved to have little deterrent effect on future illegal immigration.

Thus, the first ground on which a “clean” Dream Act fails is that it, as I wrote, “would enshrine continuation of the incentive for people to continue violating our borders” (i.e., perpetuates our current crisis). When a so-called “solution” does not address the underlying and ongoing problem, it all but guarantees that we will be searching for a new solution from square one in short order.

What is the Solution?

In the first two sections, we examined two unpalatable options: (1) No legalization for DACA recipients and others similarly situated; and (2) Clean legalization. It is easy to propose ideal solutions to the problem, but the reality in the current political climate is that only a small number of proposals have the potential of passing Congress and being signed by President Trump. The March 5, 2018 deadline for the DACA program is fast approaching (notwithstanding the current litigation on the issue, which will likely be resolved in favor of the Government if the Supreme Court reaches the merits [see article]). White House Chief of Staff John Kelly has stated that President Trump is highly unlikely to extend the program further, and that the White House would oppose any short-term extension to DACA.

Having rejected the “bi-partisan” proposals on the table that reflect the prevailing position in the Democratic Party of support for clean legalization, I will now address the White House proposal. Here, I will condense another answer I gave on Quora to a question titled: “What do you think about Trump's proposal of a 1.8 million path to citizenship for the wall/immigration reform?” [PDF version].²

President Trump's proposal takes the middle ground between the liberal bipartisan proposals and the more conservative proposal in the House of Representatives authored by Bob Goodlatte (R, VA-6). The liberal proposals would be vetoed by President Trump were they to ever reach his desk, and the Goodlatte proposal, if it cleared the House, would assuredly be stymied in the Senate. Although the prospects for the Trump proposal do not look favorable, it is likely that the foundation for any eventual compromise would have to derivet from its framework. With the introduction concluded, I will offer my thoughts on the framework in light of the priorities I discussed in the first two sections.

First, while there are quibbles to be heard from both the left and right regarding the White House proposal, I think that the framework is fair. First, the White House proposal would offer 1.8 million individuals, nearly three times the number of people who benefitted from DACA, the opportunity to apply for legalization and a path to citizenship. In theory, the White House's opening offer could have been applied only to the people who have or who previously had DACA benefits, and it also could have offered legalization with no path to citizenship. This would have been taking the complete opposite position to that taken by the Democrats and by a small number of Republicans, such as Senators Graham and McCain. However, the White House starting point extends beyond protecting just those who are actually slated to have their immigration situations altered by the end of the DACA program.

I do have questions about the White House proposal's efforts to solve the border security issue. As I stated in my Quora post, “I am not sure about the wall…” Although the DHS has appeared to scale back President Trump's ill-conceived campaign promises about the wall and to focus on regions that could actually use new or additional physical barriers, it would be helpful to see in more detail what the DHS has in mind before making a massive appropriation for construction. While walls in specified areas would undoubtedly be helpful, I listed several other things that should be included and would perhaps have a more significant effect impact:

New technology-based security and surveillance systems at the border;
Many more border patrol agents;
More stringent monitoring at airports; and
Shorter periods of authorized stay on visitor visas (e.g., 3 months instead of 6 months).

Furthermore, I have concerns about the White House's funding request for the wall. The United States is already deeply in debt, and we pay an extravagant amount just to finance the debt that we already have. That being said, border security is something that is necessary. Having a porous border exacerbates law enforcement costs in the interior, be it immigration enforcement, drug enforcement, or other types of criminal enforcement. For example, while the numbers of aliens illegally crossing the border were down last year, the amount of narcotics crossing the border was not [see article]. Additionally, having a border that is easy for nefarious actors to exploit also creates grave national security risks. After balancing the cost of border security and the debt issue, it is crucial that any significant initiative on the border must drastically improve the overall situation. Improved border security must reduce the costs that a porous border imposes on the interior of the United States, and it must do so in such a way as justifies the enormous funding outlay and is not merely a short-term fix

Although border security, and the wall specifically, receive the most publicity, other reforms must be included along with legalization. To that effect, President Trump proposed two additional reforms that for the most part, I consider helpful.

First, the White House proposal would eliminate the Diversity Visa lottery program. I wrote a lengthy post in support of this idea a few months ago [see blog]. I need not re-state all of the arguments here, but the Diversity Visa lottery allocates visas to individuals based purely on nationality and only as a matter of chance. Proponents argue that “diversity” in immigration is intrinsically beneficial to the United States in and of itself. I disagree. Like any other individuals, those seeking to immigrate to the United States (outside of relatives) should be evaluated on the basis of their skills and how they will fit into U.S. society. Although many lottery winners are good people who benefit the United States, the program is in no way designed to select for those kinds of qualities. For this reason, we should commit to evaluating potential immigrants as individual human beings rather than by their nationality, and we should reallocate the Diversity lottery visas to a new merit-based employment category.

Second, the White House proposes to eliminate what is known as “chain migration.” Although some, such as Senate Minority Whip Dick Durbin, have stated that “chain migration” evokes “slavery,” the truth is far more anodyne. It refers generally to the third and fourth family-sponsored preference categories for the adult children of U.S. citizens and the siblings of U.S. citizens. The issue here is that an individual who gains a visa through one of these preference categories is also able to bring his or her own spouses and minor children, and so on and so forth. Although, for example, the fourth preference category authorizes 65,000 visas per annum, the real number of individuals who immigrate is far greater than 65,000. This same issue has been noted with regard to the Diversity Visa lottery as well. Furthermore, the third and fourth preference categories are inefficient, with many individuals waiting for well over a decade to actually obtain a visa. Similarly to my proposal for the Diversity lottery visas, I believe that these visas should be reallocated to a merit-based employment system.

However, I do have one additional concern regarding the White House's proposal to curtail chain migration, that is, that the limitations should not affect alien parents of U.S. citizens, who are immediate relatives under our current laws. If both sides are ready to negotiate honestly, this could be addressed in a final proposal.

Finally, the White House proposal calls for making it easier to expeditiously remove individuals at the border. The final parameters of this proposal would have to both disincentive illegal immigration and ensure that those who have bona fide cases for protection have the opportunity to make their cases for relief.

Hopes for a Solution

With all that being said, I think that the chances of a legislative solution to the problems discussed in this article are slight. Because of fractures within the Republican Party and because any legislation would require 60 votes in the Senate due to the threat of a Democrat-led filibuster, it is evident that any solution would require both sides not taking extreme positions on the issue. As I expressed, I think that the White House proposal is actually a positive step, offering a full path to citizenship available for up to 1.8 million individuals in return for structural immigration reforms. Furthermore, President Trump has not taken the position that his proposal is a final offer. While he has stated that certain components — such as wall funding — are required, he has invited the Democrats to negotiate with him and with Republicans who support his principles in Congress to arrive at a compromise that would be acceptable to both sides. Unfortunately, with less than a month until the DACA program expires, we have seen little sign that his invitation will be heeded.

Some criticize the White House proposal not only on policy grounds ( and I agree it is imperfect), but also based on the idea that Prfesident Trump has put issues on the table which should be part of a comprehensive immigration reform negotiation process addressing everyone s who is in the United States illegally, not only the most sympathetic cases at issue under DACA. This position reflects the conventional wisdom in Washington over the past several decades. However, as I explained in the previous sections, it is essential that a substantial legalization program be accompanied by changes that help ensure that the underlying cause of the issue is ameliorated. President Trump's requests are not merely a wish list of things that he would like to see (e.g., although we both support merit-based immigration reforms [see opinion blog], they are nowhere to be found in the White House framework), but include specific proposals to offset the magnet effect that legalizing 1.8 million individuals may have. The mere fact that something has been conventional wisdom does not mean it was or is wise. In the case of the current situation involving nearly two million individuals in the United States who were brought here as children, one needs little more evidence of the failings of the accepted way of doing things than the problem itself.

Finally, regarding the recalcitrance of Democrats and liberal Republicans to accept any real reforms to the immigration system, we must remember that the left had ample opportunities to push for its solution in 2009 and 2010. As Byron York noted in the Washington Examiner, former President Barack Obama campaigned on “comprehensive immigration reform” in 2008, and he entered office with far larger majorities in both houses of congress than President Trump has [link].³ In fact, for the better part of 2009, the Democrats had a filibuster-proof 60-vote majority in the Senate, far more substantial than the 51 seats currently held by the Republicans. For whatever reason, the Democrats did not prioritize legalization when they had the chance, and President Obama's ultimate solution was to create impermanent solutions for individuals in the United States illegally based on questionable legal rationales. While most people support legalization for the 1.8 million people who President Trump proposes to legalize, it is hard to characterize the results of the 2016 election as a cry for legalization with no improvements in immigration enforcement at all.

While I am cynical of the prospects for a solution, the truth remains that individuals who were brought to the United States as children deserve protection and we are in need of structural reforms to the immigration system to help ensure that this situation does not arise again. For that reason, we had best hope against hope that enough members of Congress are able to reach a compromise that sufficiently addresses both of these concerns.

Final Notes

I frequently answer questions about immigration law and policy on sites such as Quora and Avvo. If you have a quick legal question about immigration (as opposed to a policy question), please remember that you can use our “Ask a Question” feature here on site [see section].

To learn about the rescission of DACA and new updates on the situation, please see our main informational article on the subject [see article].

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1. Segal, Alexander. “Re; Why does Trump plan to give citizenship to illegal immigrants over legal immigrants?” Quora. Jan. 31, 2018. https://www.quora.com/Why-does-Trump-plan-to-give-citizenship-to-illegal-immigrants-over-legal-immigrants/answer/Alexander-J-Segal-Esq?share­a95260b7&srid­uriLx
2. Segal, Alexander. “Re; What do you think about Trump's proposal of a 1.8 million path to citizenship for the wall/immigration reform?” Quora. Feb. 1, 2018. https://www.quora.com/What-do-you-think-about-Trumps-proposal-of-a-1-8-million-path-to-citizenship-for-the-wall-immigration-reform/answer/Alexander-J-Segal-Esq?share=4869912e&srid­uriLx
3. York, Byron. “Why didn't Obama pass immigration reform when he had the chance?” Washington Examiner. Sep. 9, 2014. http://www.washingtonexaminer.com/why-didnt-obama-pass-immigration-reform-when-he-had-the-chance/article/2553046