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Why ending DACA is so unprecedented

Demonstrators display American and Mexican flags while protesting the end of the Deferred Action for Childhood Arrivals (DACA) program in Chicago, Illinois, on Tuesday, Sept. 5, 2017.
Christopher Dilts | Bloomberg | Getty Images
Demonstrators display American and Mexican flags while protesting the end of the Deferred Action for Childhood Arrivals (DACA) program in Chicago, Illinois, on Tuesday, Sept. 5, 2017.

The Trump administration's announcement Tuesday, that it will end the Deferred Action for Childhood Arrivals (DACA) program — removing deportation protection and work permits from nearly 800,000 young unauthorized immigrants — unless Congress passes a bill in the next six months to protect DACA recipients, isn't a punt or a reprieve. It's an opportunity to deflect, or share, the responsibility for what would be an unprecedented act in US history.

There's never really been a time when a generation of people, raised and rooted in the United States, has been stripped of official recognition and pushed back into the precarity of unauthorized-immigrant life.

Even though DACA never officially legalized anyone, ending it would be, in a way, the biggest "illegalization" of immigrants in American history.

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As a policy matter, it's straightforward: Ending DACA is unprecedented because DACA itself was more or less unprecedented. Never in US history had the government offered protection to so many people who didn't have (and weren't subsequently given) the opportunity to get full legal status from there.

The government has a lot of power to shape immigrants' lives — but it's never had perfect control over who immigrates to begin with. The history of immigrants who received DACA protections is unique, and the legal status to legitimize or delegitimize them is too. Often as not, when politicians try to reconcile law and reality, the result is that the law gets changed to bend to the reality — not that the reality is changed by enforcing or changing the law.

DACA was one such attempt. If Congress and the White House can't agree on a bill within a six-month timeframe, and the Trump administration rescinds DACA, the US will be in wholly uncharted territory.

Undoing DACA would widen the gulf between reality and law. And that gulf is, in some ways, broader than it's ever been before. What truly makes the end of DACA unprecedented, in the broad sweep of US history, is the size of that gap between the law and the reality.

With DACA hanging in the balance, America has a group of people on the verge of being socially integrated, but legally isolated — socially championed, but legally victimized — in a way we've never really seen before.

The choice between reconciling the law with the reality and creating an unprecedented chasm between the two lies with Congress and the White House. The stakes could not be higher.

Growing up an unauthorized immigrant in the US is relatively uncommon in American history

For as long as there have been immigration laws, there have been people trying to (and often succeeding in) circumventing them. But the stereotype of the "illegal immigrant" — a Mexican or Central American man who crossed the US/Mexico border without papers — comes from a phenomenon that's only been in place for the past 40 or 50 years, at most.

Historically, it was easy enough to cross the US/Mexico border and work in the US — both because it was simply easier to enter the country by land without being detected than to sail into New York harbor, and because (partly because it was so hard to regulate) the US government didn't restrict immigration from the Americas the way it did from the Eastern Hemisphere.

It was so easy, in fact, that immigrants were often simply migratingback and forth. "Immigrants preferred to live in Mexico for most of the time," Stanford historian Ana Minian explains, "and then come for short periods of time, sometimes up to a couple years, and then return to Mexico until they needed to come back again."

It wasn't until the second half of the 20th century that the US made it harder to legally immigrate from Mexico. After that, it was still possible to come to the US and work — just not legally. So the circular migration continued, but its legal status changed.

The circular flow didn't stop until the 1990s, when the US started building up border security. But instead of a bulked-up border causing migrants to settle in Mexico, immigrants often settled in the USto avoid repeated risky border crossings — and their families crossed north to settle alongside them.

Before the 1990s, it wasn't necessary for a child to settle in the US without papers in order to keep a family both employed and together. After the 2000s, when net unauthorized migration from Mexico dropped to zero — and with children coming from Central America often for humanitarian reasons as much as anything else — there wasn't a flow of children coming without the opportunity to get legal status upon arrival.

Surely this narrative doesn't encompass every DREAMer's personal story, but it helps explain why there are so manypeople who are currently young adults who've grown up among American citizens, as unauthorized immigrants.

It explains why so many of them haven't just lived in the US since they were 6 years old, but haven't even seen their home countries since then (even a brief family visit could exile them from the US forever if they were caught upon return). It explains why many Americans who don't necessarily support wide-scale legalization of unauthorized immigrants think of DREAMers as "good" immigrants. And it explains why the DREAMers, themselves, have been able to stand up and advocate on their own behalf — because they're demanding rights they've seen exercised by their peers.

It's harder for people with US-born family members to "get legal" than it's ever been

The average DACA recipient, according to a study conducted in August 2017 by Tom Wong of UC San Diego (on behalf of a coalition of liberal and immigrant advocacy groups), entered the US at the age of six. The average DACA recipient today, according to that same survey, is now 25. That means that many of the people who currently have protection from deportation under DACA have been in the country for 20 years.

Simply in order to qualify for the program, DACA recipients have to have entered before 2007 — meaning even the least-settled DACA recipient has been in the US for a decade.

This, too, is unusual. In the past, people didn't necessarily stay unauthorized (much less vulnerable to deportation) for 10 or 20 years at a time. It used to be possible for many unauthorized immigrants to "get legal" without leaving the US and trying to return; it no longer is.

Before 1976, immigrants from Latin America could apply to become legal permanent residents (green card holders) if they had children who had been born in the US — no matter how old those children were. (According to Wong's survey, 25 percent of DACA recipients have US-born children.) Even if they were already living in the US as unauthorized immigrants, they'd be officially "admitted" to the country once their applications were approved.

The 1976 law forced parents of US citizens to wait to apply for green cards until the child had turned 21. But even then, says Charles Kamasaki of UnidosUS (formerly the National Council on La Raza), "there was a largely informal — but, I think, largely followed — policy that parents of US citizens were generally deferred from deportation until they could adjust" to permanent residency.

That all changed in 1996. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) forced people who had lived in the US as unauthorized immigrants to wait three or 10 years outside the US (or even be barred permanently) before being allowed to become legal immigrants. An immigrant with family in the US could try to get a waiver, but would still have to leave the US to do so — and if the waiver was denied, she'd be stuck outside the US for years.

Clarissa Martinez of UnidosUS describes it as a "squeezing" — "not only are the possibilities narrower" to immigrate legally, "but you're also getting the door slammed on any possibility of adjusting in the future."

If the chance of "getting legal" was something of a toss-up, it didn't seem logical to take the risk.

It's impossible to predict what would have happened had the 1996 law not passed. But under the laws that existed before 1996, most current DACA recipients would have a path to legal status: either via their US-born children, their US-born spouses, or because they would have been able to "get legal" alongside their parents via the DREAMers' US-born younger siblings.

It's the combination of settledness and the difficulty of getting legal that make DREAMers generationally unique in the history of US immigration policy. They're far from the first immigrants in US history who've been totally excluded (or all but excluded) from legality. But for a family to go through a generational life-cycle without the opportunity to legalize as a family — that's something else.

This is why DREAMers themselves tend to resist the talking point that their parents are to blame for bringing them to the US. It's why they've often been just as concerned about the fate of their parents and relatives who didn't qualify for DACA, who might have some other form of temporary protection or might not have any protections at all, as they are with their own political fortunes. And it's why they've worried, even before losing DACA, that their official recognition by the government could put their parents in danger.

Life without immigration status is hard and only getting harder

Socially, unauthorized immigrants live alongside legal immigrants and US citizens. But the legal distinctions between them affect what they can do with their lives.

The reason that many DREAMers didn't find out they were unauthorized until they were in their mid-teens is because it was then that their documented peers became able to do things they couldn't, like drive, get after-school jobs, or apply for federal financial aid for college. In the working world, those distinctions become absolute.

This, too, is fairly recent. Kamasaki allows that you could say that until 1986, when the Immigration Reform and Control Act (IRCA, or the "Reagan amnesty") allowed employers to be penalized for hiring unauthorized immigrants, "there was no practical consequence" to being unauthorized — "you didn't have to have work authorization" to work in practice.

Since then, the federal government has worked to prevent people without immigration status from getting hired to begin with — the electronic screening system E-Verify isn't mandatory, but many of the country's biggest employers use it to check applicants' Social Security numbers. Unauthorized immigrants who work under-the-table, low-status jobs may well be qualified for better ones, but simply unable to get them.

States and the federal government have worked to tighten access to social services based on immigration status. Georgia has barred unauthorized immigrants from public colleges and universities.

Life without immigration status isn't just about opportunities denied — it's about the risk of deportation. That risk, too, has grown over the past couple of decades. Relatively few unauthorized immigrants were rounded up and deported from within the US 20 years ago. After 9/11 and the creation of the Department of Homeland Security (which spun off immigration enforcement in the US "interior" into its own agency with its own, politically appealing budget line), that number steadily rose with capacity to track down and deport hundreds of thousands of immigrants.

There have been other times in American history when unauthorized immigrants have been at substantial deportation risk: Operation Wetback during the 1950s, for example, or farmworkers in California during the 1970s.

Stanford's Minian says that immigrants of that period had to create mental maps of where immigration agents might be from day to day and avoid them, with some afraid to leave their homes during the day — or even living in trees to avoid la migra.

"But then, the possibility of reentry was also much higher," she adds. "If you got deported, you would probably just come back. And the meaning of deportation, in some ways, wasn't the same, because few people had families." In other words, the risk was higher, but the consequenceswere less grave.

The immigrants protected by DACA, however, may have little beyond the US because policy has forced them to stay here. But it's also forced them to stay on the margins — and made those margins a scarier and shadowier place to be than they were when the DREAMers arrived.

Unafraid but still undocumented

DREAMers, many of whom grew up thinking of themselves as American, have produced a social movement.

Realizing the truth about their immigration status meant becoming more acutely aware than their peers of the ways in which government shaped their lives, and what needed to change for them to achieve their potential. Realizing this while having been raised in the US, living among US citizens and speaking English, gave many of them the social capital to feel empowered to "come out" as unauthorized immigrants and demand their rights.

It's not a coincidence that unauthorized immigrants have become more visible over the past decade, and that that movement's been led by DREAMers. It's not a coincidence that DREAMer-led organizations have been at the center of the immigrant-rights movement. President Barack Obama didn't just implement DACA because the American public liked DREAMers; he implemented it because he was under pressure from DREAMers and the groups who supported them.

But President Donald Trump was elected in part due to his promises to crack down on immigration. Instead it is those who want to see the program rolled back who have power, like Attorney General Jeff Sessions, tapped as the public face of the administration's decision to set an end date for DACA, and senior adviser Stephen Miller.

The days before Sessions's announcement made it clear just how embedded its recipients are in civil society. Universities, employers, churches, and local and state governments called on Trump to keep the program. He didn't listen. Members of both parties warned him not to do it. He responded by trying to make it their problem to fix. Seventy percent of Americans told an NBC News poll they thought DACA should stay; he listened to the other 28 percent.

Killing DACA wouldn't silence those voices. It wouldn't necessarily force DREAMers back into the shadows. It wouldn't undo all the gains that they've been able to accrue over the past half-decade.

For the next six months, the forces that amassed to save DACA from President Trump will turn their attention to Congress. They'll push for a bill that will do what DACA never could: allow DREAMers to become fully legalized as immigrants in the US, and eventually become US citizens. They'll continue to express their hope for a permanent solution.

But behind the lobbying and rallies, behind the tightly held optimism, will be a persistent and terrifying dread — that the alternative to success is something terrible.

The Trump administration has just stuck a huge question mark on DREAMers' place in civil society.

The employers who wanted DACA to remain wouldn't be able to keep employing DREAMers when their work authorization expires — and now have six months to figure out how they might respond to that. DREAMers may no longer be able to justify paying tuition at those universities if they can't work in the US after getting the degrees — over the next six months, they have to make decisions about their educational futures.

And if the threat of losing DACA doesn't necessarily force DREAMers to go back into the closet about their immigration status, it certainly offers a powerful incentive to them to keep quiet — even as the fight in Congress makes it more important than ever for them to speak up and galvanize the citizens they know to put pressure on their elected representatives.

Eliminating DACA would mean adding 800,000 more people to the most marginalized of immigrant groups — and eliminating it six months from now simply puts them on the waitlist.

It's not a policy that makes sense if your goal is to reduce the size of the unauthorized workforce, or to make it easier to track down and deport "bad hombres."

It is a policy that makes sense if you want to send a message: that growing up in the US and having ties here mean less than they ever have, and that the papers you hold or don't have mean more.

That message won't change the reality of who's living in the US. But it will be inscribed in the choices that those who lose DACA make, every day, for the rest of their lives. And because they are, and remain, so embedded in American communities, those choices can't help but reverberate into the collective fabric of American life as well.