A look at the guts of our immigration-enforcement machinery
There’s a lot of concern that if Deferred Action for Childhood Arrivals (DACA) ends, a lot of people are going to be sent “home” to countries they don’t really know. Some are worried that so-called DREAMers could be done in by information they willingly gave the government through DACA.
No one should be overly confident in what Trump will do tomorrow, much less six months from now, but here’s a brief look at what might happen if DACA really ends.
Historically, illegal immigrants have been deported mainly in three circumstances, even if they’re not part of a special program like DACA: One, if they’re caught in the process of crossing the border (and even then, deportation isn’t assured); two, if they’re criminals; and three, if there’s reason to think they’re a national-security threat. In his later years, President Obama implemented new policies to focus immigration enforcement almost exclusively on these categories. Practically no one was deported in 2016 who didn’t fall into one of them.
This is changing under Trump, but the extent of that change isn’t yet clear, because we’re still waiting for the data to come in. Trump has expanded the definition of “criminal” quite a bit, to include those using fake Social Security numbers, those who have not yet been convicted, and virtually anyone else authorities see as a public-safety threat. Further, while criminals and border-crossers are still the clear priority, the government is no longer deliberately refusing to deport people who don’t fall into one of the three categories above; if a court issues a removal order against someone, they can be sent home.
It’s not really clear where all this will end up. Immigration courts are backlogged and can’t speedily deport people. Even as immigration arrests, especially of those not convicted of a crime, have risen dramatically under Trump, deportations are actually down, thanks to a decline in people caught crossing the border (who are sent back through an expedited process). We just don’t know yet how many non-criminal, non-national-security-threat, non-border-crossers Trump’s policies will actually send home and how that number will compare with the thousands who were deported before Obama virtually exempted those outside the three categories that have always been the main focus of immigration enforcement.
We also don’t know if, even without DACA, DREAMers will be treated differently from everyone else. This population has Trump’s clear support, as last night he said he’d “revisit this issue” if Congress doesn’t act. (I suppose one middle ground to strike would be to pull these folks’ work permits but still shield them from deportation.) Meanwhile, the Department of Homeland Security has already promised not to turn over DACA documents en masse for enforcement purposes, though it will provide them for use in specific cases, in theory meaning that any DACA recipient who’s arrested could be vulnerable to deportation.
My best guess: Without DACA, DREAMers will be in a precarious position.
My best guess: Without DACA, DREAMers will be in a precarious position. They’ll no longer be outright shielded from deportation — even if they most certainly will not be targeted and rounded up — and without work permits they’ll obviously find it harder to get jobs. They’ll basically live the lives that other illegal immigrants live, which, as Michael Brendan Dougherty notes today, means being vulnerable to corrupt landlords and employers because they’re breaking the law themselves and don’t want to call the police. That warrants our sympathy.
But at the same time, this is the situation their parents brought them into — the situation they were in before 2012 — and Congress, which has the responsibility of changing the law, has shamefully not done so. It was illegal for Obama to simply legislate by fiat. Further, as I’ve said before, on a policy level it is profoundly unwise to legalize illegal immigrants while doing nothing to tighten enforcement — it only sends the message that you can gain legal status eventually if you break our laws.
Giving Congress six months to change the law and canceling the program after that was a smart move faithful to the Constitution’s separation of powers, even if we can truly regret what will happen if Congress fails. Paradoxically, in hinting that he’s not willing to follow up on his threat, Trump only made such a failure more likely, and probably increased the likelihood of a continuing court challenge to DACA.
The art of the deal, indeed.
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