Justice Deferred

DACA only exists because young activists fought fearlessly for it. Its end would be a blow to the movement for immigration justice.

An immigrant rights rally in 2012. Diane Ovalle

On September 5, the Trump administration — just as Houston started looking ahead at a long, expensive, and painful recovery and as Hurricane Irma loomed off the coast — announced that it would end Deferred Action for Childhood Arrivals (DACA), a program that provides protection from deportation to young undocumented immigrants who came to this country as children. This move, if Congress doesn’t act, will mean that some eight hundred thousand people, young people who have grown up in the United States, will be eligible for deportation. This, even by the brutal standards of this country’s history of immigration enforcement, is spectacularly cruel.

Daniel Denvir for the Dig, a Jacobin magazine podcast, spoke with César Cuauhtémoc García Hernández, a professor of law at the University of Denver, about what exactly DACA is and why it’s so important to fight for its survival.


DD

So Trump’s revocation of DACA isn’t exactly surprising, but it’s still astoundingly cruel.

CCGH

No one was surprised that this decision came, and certainly not in the last week or two where we kept getting updates from the president and senior advisers in the White House. That doesn’t mean that the impact is any less devastating on all the young people who have invested time, energy, years, and money into educating themselves and establishing their lives as professionals and members of our workforces.

They have now been doing this for many years and really shown themselves to be able to rise to the opportunity that DACA presented for them. It’s a blow that should not be understated in any way, even if it was a particularly unsurprising decision from the president.

DD

What do you think the path forward is? Trump kicked the issue to Congress, and then he also said he might revisit the issue if Congress does nothing. What do you make of Trump’s comments? Can one make anything clear of them? Do you think that Congress might come through? They certainly have not done so in the past.

CCGH

I think it’s important to be somewhat skeptical of President Trump’s comments whether they are in tweets or whether they come out of his mouth. He has shown himself to be remarkably uninterested, meandering from point A to point B and unperturbed in completely flipping his positions. This is the logical result of being largely ideologically vacuous and not having an understanding of the impact of the many decisions that he and his administration are making.

Today, he sent a tweet saying that folks who have DACA don’t have anything to worry about. It’s ludicrous to say that. Folks who have DACA have a lot to worry about. They have their lives to worry about. To quote him he says, “You have nothing to worry about.” That suggests at best that he has no idea what the impact of his administration’s decision is. Will Congress act? Who knows? Congress has shown itself consistently incapable of doing exactly what it is now in their court to do.

I don’t think that the history of the DREAM Act suggests that we ought to be particularly hopeful. I do think that this is an opportunity for advocates and activists to push Congress to take the morally and economically sound position and provide legalization for these young people without determining a group of people to exclude. DACA is a remarkably narrow program that excludes all kinds of people who are just ordinary human beings. I hope that Congress takes a more expansive view of that or, at least, that activists push Congress to do that.

DD

I want to talk about Attorney General Jeff Sessions’s announcement. He made a lot of inflammatory statements during his speech on ending DACA. Sessions said that DACA effectively provided a legal status to immigrants and that it was an unconstitutional usurpation of what should be a legislative matter. What’s your response to that?

CCGH

DACA never provided a legal status to anyone. It offered a promise of reprieve from immigration enforcement actions. That promise is what’s known in the law as “deferred action.” The D and the A of DACA. This is a longstanding practice within immigration law and well precedes the Obama administration. It’s just a form of prosecutorial discretion. Prosecutorial discretion is common across areas of law, and it’s extremely common in the criminal context where prosecutors have basically unhindered authority to decide which crimes to investigate and not to investigate. Sometimes it’s for good reasons and sometimes it’s for bad reasons.

We know that Denver is full of people who are engaging in federal drug crimes, but we are not going to go after them because of some countervailing reason. I can point you in that direction from where I’m sitting in my office from the University of Denver right now. There might be perfectly good reasons to decide not to prosecute certain kinds of criminal activity. Sometimes it’s, “I know this person’s father, and his father is my golfing buddy.”

The courts are pretty clear that we leave the decision to prosecutors to decide for themselves which offenses to go after. Deferred action is nothing more than a form of prosecutorial discretion that didn’t start with President Obama or with DACA and won’t end with DACA’s demise either.

DD

Sessions also said that DACA created a sort of moral hazard that incentivized the massive influx of Central American refugees in recent years. Is that why Central Americans, tens of thousands of them, came to the United States?

CCGH

There is absolutely no empirical basis for that claim. The reality is that Central America has been ravaged by violence and economic despair in the last several years including violence that is being perpetuated by the gangs, the so-called “maras” in Spanish. These were young immigrants who were brought here as children, socialized in our urban areas, and were being pushed into a marginalized existence. Instead of addressing the root causes of poverty and marginalization and poor public education systems, Congress working with multiple presidential administrations decided to deport our way out of these problems. This ended up fomenting the gang problem and results in destabilization of many Central American nations to the point that young children and families end up fleeing to the United States in search of the basic ability to live.

These actions, not the temporary promise that immigration enforcement actions won’t be initiated against you, is what leads to so many people coming to the United States.

DD

Trump and Sessions demagogue around the specter of Maras Salvatruchas, but it’s really important to understand that that gang was born in Los Angeles among young people that fled dirty wars in Central America fueled by the Reagan administration. We really have responsibility for the recent wave of Central American refugees on many levels in a way that has nothing to do with DACA at all.

CCGH

That’s right. We might all be better off if policymakers were willing to learn about the past practices of the United States.

DD

Sessions also said that DACA recipients stole American jobs.

CCGH

I don’t know who came up with the image of the economy as a pie, but I think they’ve done an enormous disservice to all of us. This suggests that economy has slices. I give some to you and some to me or that the more work that you have, the less work I have etc. This is not the way the economy works. It contracts and expands. We’ve seen the devastating effects of the contractions and the improvements of the expansions. That’s not any different now. DACA recipients are not so extraordinary and powerful that they can alter the forces of capitalism by themselves.

DD

It’s a remarkable statement when you consider how dedicated they are to redistributing as much money as they can upward to the superrich.

CCGH

It’s a suggestion that they don’t understand how the economy operates, or that they are perfectly willing to lie. Since other items in their agenda involve demonizing migrants, I think it’s the latter of the two.

DD

Sessions also seemed to mislead on the judicial history of DAPA (Deferred Action for Parents of Americans). He made it sound like the Fifth Circuit’s ruling against DAPA, which upheld a district court’s nationwide injunction against it that was later affirmed by a split Supreme Court, was precedential, which I don’t think is quite right. What’s your take on that and could you first explain what DAPA is or was?

CCGH

Deferred Action for Parents of Americans and lawful permanent residents program is what we often refer to as DAPA, and that would have provided a temporary reprieve from enforcement actions of the parents who have US citizen or permanent resident kids. DAPA was challenged by a number of Republican-led states with Texas at the forefront. That was enjoined by a district court judge, Andrew Hanen, located in South Texas that was affirmed by Fifth Circuit Court of Appeals, and then the US Supreme Court entered a split decision 4-4.

DD

Which just automatically affirms it?

CCGH

Which automatically affirms the lower court decision, but to say that has any bearing on the DACA program itself is flatly wrong. Attorney General Sessions is not confused about that. It was just obfuscation; it was just a lie.

DD

He’s a lot of things, but he’s not an idiot.

CCGH

He’s not an idiot. He’s not dumb. There are senior people in the Justice Department who are very clear about the distinction between DAPA and DACA. No court has to date entered a decision on the legality of DACA. In his speech on Tuesday, the Attorney General’s decision made a lot of the possibility that some states, again led by Texas, might sue, challenging the legality of DACA. He said that was a significant part of why the Trump administration rescinded DACA. That’s not an actual lawsuit; it hasn’t actually happened. He’s acted on the basis of a threatened lawsuit.

Now that we have at least two actual lawsuits that have been filed in the last thirty-six hours challenging the Trump’s administration to end DACA, I wonder if that means he’s going to equal or greater weight to actual lawsuits than he gave to the hypothetical lawsuits. Maybe now he’s going to rescind his rescission because he’s been sued twice.

DD

Who knew Jeff Sessions was so gun-shy?

CCGH

Exactly. Who knew that after all those years in the United States Senate, he would run and hide as soon as someone threatened to sue him. The Justice Department and the Federal Government get sued all the time. If he’s going to cower every time someone sues him, then we need somebody else at the helm of the Justice Department.

DD

Speaking of Sessions’s true motivations, I think he got to the heart of them when he pitched Trump’s proposal to limit authorized immigration during the DACA announcement. There’s always all this attention paid to “illegal” immigration, but the nativist, xenophobic movement’s true goal has always been to sharply reduce legal immigration and to turn the clock back to 1964 when the country had an explicitly white supremacist immigration system in place.

CCGH

I think in a way there’s a breath of fresh air that comes out in moments like that where high-level officials like an attorney general stop lying and reveal their true colors. The immigration-restrictionist lobby led by organizations like Center for Immigration Studies have long wanted a smaller number of lawful immigrants admitted into the country. They now have a voice in the cabinet. They have staff-level voices spread throughout the administration. I think those kinds of comments ought to be received as indications of their true colors.

This is a moment when advocates for immigrants can stop and pause and truly assess what the Trump administration’s goals regarding immigration instead of trying to navigate through this ticket of lies and obfuscations, or when we’re dealing with the president himself, a complete misunderstanding of what’s happening.

DD

I think in the past that mainstream immigration moderates have so often sold out undocumented immigrants to protect relatively high levels of authorized immigration. Not only was this strategy cynical and cruel towards unauthorized immigrants, but it also, now that Trump and Sessions are in the White House and Justice Department, didn’t work. By feeding the fires of anti “illegal” immigrant sentiment, they’ve also brought out these nativists who truly just want to sharply restrict immigration dramatically, especially immigration of poor people of color.

CCGH

What we’re identifying is this binary of immigration law that’s existed for several years that states that there are “good” immigrants and “bad” immigrants, and that somehow it’s possible to tell the two apart. We define the good and the bad differently at different points in time. Sometimes, it’s are you Chinese or not Chinese? Are you white or not white? Are you homosexual or heterosexual? These days it’s based on whether or not you have a criminal history. Yet the bottom line is that the frame is always the same. We are always trying to segregate between good people and bad people.

Making policy assessments about the moral worth of individuals is a really slippery because we’re talking about people. People are not easy to characterize, we’re a mix of good and bad. We’ve all done things that we regret the moment we do them. Some of us are just fortunate enough that this doesn’t become a criminal blemish from which we can’t escape and others of us aren’t. This doesn’t alter our moral worth. I think Democrats, Republicans, liberals, and conservatives have quite often adopted that same frame even if they disagree about who should fit into the box. I think we would all be well served if there were a critical assessment of the role of that binary moving forward.

DD

Speaking of the binary and the role that the specter of immigrant criminality plays in it, Sessions did suggest that deporting Dreamers would keep the nation safe from crime and terrorism. Tell me about the linkage between immigration enforcement and the criminal justice system — what you call “crimmigration.”

CCGH

Sessions suggested that getting rid of Dreamers would make the United States a safer place only because he was focused on DACA during Tuesday’s announcement. In other speeches where he’s just been talking about immigration, he’s made exactly the same claim about immigrants generally. The president in his executive orders from January made the same claim that people in the United States in violation of immigration law are national security threats. This is not new to the announcement regarding the demise of DACA. It does fly in the face of about a century’s worth of empirical data indicating that immigrants don’t commit as much crime as the native born.

While that’s true, I don’t think we have to place emphasis on whether immigrants do commit more crime than the native born. We ought to just talk about the fact that immigrants are members of our communities. Some members of our communities engage in more wrong-doings than others; some of those folks get caught and some don’t. Whether or not you get caught doing criminal activity often depends on your race and your wealth.

Going back to the Reagan administration proceeding to the Clinton years, the Bush years, and the Obama years, we have exorbitantly linked the criminal justice system with the immigration system. So we’ve stacked an immigration law enforcement apparatus on top of a racially biased criminal law enforcement apparatus, and not surprisingly that has led to a racially biased immigration law enforcement apparatus.

DD

Looking back at the history of DACA, it was really a mass movement against Obama’s iteration of this “crimmigration” enforcement system that ended up putting him under incredible pressure to enact DACA.

CCGH

DACA only exists because young people became activists and they showed no fear. They ignored the warnings by the established liberal mainstream immigrants’ rights associations and many older activists to remain silent, to remain polite, and to forego civil disobedience. Young people who left the country in order to apply moral pressure on the Obama administration to let them back into the United States. The sheer force of will and the organization savviness of young people who were willing to put themselves on the line blocking streets and infiltrating immigration detention centers is the reason DACA exists.

It’s that experience that gives me hope that we will be able to find a path to do what is morally right not only for these young people who are now on the verge of losing DACA. There are millions who are just as much in need of loosening of the immigration law, but who do not benefit from DACA.