What Does the End of DACA Mean for Immigration Reform?

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Penn's Sarah Paoletti and immigration lawyer Dan Berger discuss the DACA repeal.

Not for the first time, U.S. businesses including Microsoft, General Motors and Facebook have joined hands to prevent the Trump administration from removing protections for immigrants. Their latest protests came both before and after Tuesday’s announcement by U.S. attorney general Jeff Sessions that the Trump administration has decided to rescind the DACA (Deferred Action for Childhood Arrivals) program. The move jeopardizes protections from deportation for some 800,000 young, undocumented people brought here illegally by their parents. Businesses similarly protested when Trump signed a travel ban covering seven Muslim-majority countries; deferred a program aimed to help immigrant entrepreneurs; and when he sought to limit immigrant flows into the country.

“It’s now the time for business to speak up, for academic institutions, the medical institutions [and others] because there is the persistent narrative that immigrants are a threat to our national security, that immigrants are stealing our jobs, that immigrants are a drain on our economy,” said Sarah Paoletti, University of Pennsylvania law professor and director of the university’s Transnational Legal Clinic that focuses on human rights and immigration issues. “To the degree that the various sectors that rely on, depend on and value immigrants in the workplace and in their communities can speak up and say, ‘That is not true; these are valuable members of our community,’ that’s important. That helps re-craft and shift the narrative so we can have more honest conversations about what our priorities are in terms of immigration.”

A day after Sessions announced the repeal, Trump told the media at the White House, “I have a love for these people, and hopefully now Congress will be able to help them and do it properly.” “Such mixed messages from the administration cause real fear and anxiety among students,” said Dan Berger, an immigration lawyer and partner at Curran & Berger LLP in Massachusetts.

The move to phase out DACA has been causing “tremendous anxiety” among students who are covered by it, coming as it does at the beginning of the school year, Berger said. No new DACA applications will be accepted, and those individuals already covered under the program will begin losing their protection and work permits beginning March 6, 2018.

Paoletti and Berger discussed the implications of a DACA repeal on the Knowledge@Wharton show on Wharton Business Radio on SiriusXM channel 111. (Listen to the podcast at the top of this page.)

The practical effect of the DACA repeal on businesses will be minimal, but companies supporting the program may empathize with those that will lose protections and also want more liberal immigration policies to meet their talent needs, says a New York Times article. DACA advocates argue that its beneficiaries, also known as the Dreamers (after the DREAM Act, or the Development, Relief, and Education for Alien Minors Act), are net contributors to the U.S. economy. The DREAM Act was originally introduced in 2001, but has failed to pass despite repeated attempts over the years.

Businesses proactively petitioned Trump and Congressional leaders on Thursday last week, as speculation grew stronger of a DACA repeal, with a letter signed by 704 business executives, including Warren Buffett, Facebook CEO Mark Zuckerberg, Microsoft CEO Satya Nadella and General Motors CEO Mary Barra. Some of them also made individual appeals, including Zuckerberg, Nadella, Microsoft president Brad Smith and Uber CEO Dara Khosrowshahi.

DACA advocates have brought data to support their case that the program’s beneficiaries are a useful constituency for the U.S. economy. According to the group called Leaders of American Industry on DACA, more than 97% of DACA beneficiaries are in school or in the workforce, 5% started their own businesses, 65% have purchased a vehicle, and 16% have purchased their first home. At least 72% of the top 25 Fortune 500 companies count Dreamers among their employees, the group added. A 2016 survey of DACA beneficiaries by the Center for American Progress found that 21% of respondents work in educational and health services, 11% work in the nonprofit sector, 9% work in wholesale and retail trades, and 8% work in professional and business services.

Paoletti said that after the DACA announcement, “the big question” is whether DACA beneficiaries among its student base are still eligible for work-study. “Students are canceling their overseas programs, whether it is an internship opportunity or study abroad opportunity. They are worried about whether their family members can come for their graduation ceremonies, or whether they can travel home for the holidays or for a break.” She said it is particularly devastating for students affected by Hurricane Harvey in the Houston area.

“To move forward with a clean DREAM Act is probably the way to go and would establish some level of certainty.” –Sarah Paoletti

DACA’s Constitutionality

Critics of DACA have raised questions about its constitutionality. “I would emphatically say yes [it is constitutional],” said Paoletti, adding that she was a signatory to a letter signed by more than a hundred law professors indicating its legality. She noted that it wasn’t a blanket amnesty program but one that provided for “an individualized, case-by-case assessment with guidance as to who would be entitled to some form of prosecutorial discretion.”

The DACA program also recognized that while all the 11 million undocumented individuals wouldn’t be deported, there was a need for a system that recognizes their ability to work and provides some level of safety and security for them, said Paoletti. It also gave some hope to the beneficiaries that Congress at some point would act to provide them with a more permanent status, she added.

Many DACA beneficiaries arrived in the U.S. when they were between seven and 10 years old, and many of them have become integral parts of the academic community and productive members of the workforce, Paoletti and Berger noted. “They were raised in America and they are part of our country,” Paoletti said. “To deny them that opportunity seems very cruel.”

Berger pointed to a “collateral issue” relating to the families of the Dreamers. “Many of the dreamers took a leap of faith, filed for DACA in 2012 or after, often using their home address,” he said. “There is real fear of what will happen to their family members.”

While no new DACA enrollees are being accepted from September 5, Trump has tweeted that “no action” will be taken on existing beneficiaries over the next six months when the program will be phased out.

Broader Immigration Reform?

Discussions among advocates of the DREAM Act were conflicted during the Obama administration, said Paoletti. Proponents were divided on whether they wanted to push the DREAM Act independently or use it as a tool for broader immigration reforms. “Now we can safely say that it would be unlikely that we would see any comprehensive immigration reform in any positive direction,” she said. “To move forward with a clean DREAM Act is probably the way to go and would establish some level of certainty,” even as some people would likely lose its protection, she added.

“Mixed messages from the administration cause real fear and anxiety….” –Dan Berger

“If the Trump administration really wants to figure out how we do immigration reform in a way that will be a net positive for the economy, it’s [about] changing the rules [that determine] how immigrants come in,” Wharton professor of business economics and public policy Kent Smetters said in a recent Knowledge@Wharton article on the real costs of the RAISE Act. “In particular, [it will be] less about family ties and so forth, and more about the actual skills that they bring in.” Smetters is also faculty director of the Penn Wharton Budget Model (PWBM), a policy think tank which will soon publish its analysis of the potential impact of the DACA repeal.

On Wednesday, a group of attorneys general from 15 states including New York, Massachusetts and Pennsylvania filed suit to prevent the repeal of DACA. Berger said the DACA issue is likely to head to the U.S. Supreme Court, where the current nine-member bench will ensure that there is a decision, unlike in earlier times when cases ended in a 4-4 tie with an eight-member bench. Soon after the Sessions announcement, the Democratic Party proposed an urgent vote on the DREAM Act.

Trump in a tweet urged Congress to act on the phase-out of DACA. House of Representatives Speaker Paul Ryan said Congress will spend the next couple of months trying to work out a “consensus” and a “compromise” to address the “serious humane issue” in phasing out DACA, the New York Times reported. The Senate Judiciary Committee plans to hold a hearing on DACA next week, the report added.

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