September 25, 2017
By: Dina Sakita, Immigration Counsel
Immigration law is unlike any other area of law for at least two primary reasons. First, jurisdiction over immigration laws is granted to the federal government only – the states and local municipalities are not permitted to enforce compliance with immigration laws. Second, our nation has a long history of acquiescence (or one might argue deliberate lack of enforcement) in order to meet its labor shortages and domestic economic needs at any given time. In other words, and loosely speaking, an unlawful migrant workforce has been expected, tolerated, and thereby encouraged throughout our nation’s history beginning with those who built our nation’s railroads to those who have worked across the nation’s farmlands.
Combine these two factors and it’s no surprise we now have a staggering population of more than 11 million undocumented migrants (in 1982 the number was just over 3 million). Which leaves us with a highly contested and debatable topic – one that might be best left out of dinnertime discussion for fear of arousing intense emotions on opposing sides of the spectrum – that is, illegal immigration.
In an era of increased immigration enforcement, it is no surprise that the Trump Administration has taken a hard line on immigration. On September 5, 2017, President Trump, through Attorney General Jeff Sessions, rescinded the controversial DACA (Deferred Action for Childhood Arrivals) Program which sought to protect the large population of “Dreamers”, who were brought to the U.S. as children by parents seeking a better life in the U.S. DACA was created in 2012 out of an Executive Order under former President Obama. While countless lawful immigrants face the challenge of obtaining lawful (and limited) work authorization in our country, DACA recipients were instantly granted a two year open market work permit with the ability to extend their work authorization every two years. The legislative process was completely bypassed in order to provide Dreamers with unhindered work authorization.
By rescinding DACA, President Trump gave Congress a six month deadline to pass legislation protecting Dreamers, and as a result, may very well be the first President to claim the glory of what will amount to a monumental piece of legislation to address the nearly 800,000 Dreamers brought to this country unlawfully due to no fault of their own. When viewing this in the context of the government acquiescence during this era, most of us can agree that granting this group of individuals some form of protection is the right thing to do, however, it must be done through proper legislative means.
In a historical decision, the U.S. Supreme Court decided in Plyer v. Doe (1982) that no state can limit a child’s access to elementary and secondary public education based on immigration status. The rationale behind this decision was in large part motivated by the fact that the plaintiffs were children who were brought to this country unlawfully due to no fault of their own, and that the benefit sought was fundamental – the right to an education. There are many parallels to the DACA debate – the right to work and earn a livelihood is fundamental, as is freedom against deportation to a country completely unknown to them, another benefit provided under DACA.
As we have entered an era of increased immigration enforcement, we will inevitably witness a shift in policy as it applies to addressing labor shortages. By some accounts, unauthorized workers make up roughly 5% of the U.S. workforce. Since the Trump Administration has taken office, illegal border crossings have declined significantly and immigration court deportation orders are on the rise.
Just today, three Republican Senators announced the SUCCEED Act (Solution for Undocumented Children through Careers Employment Education and Defending our Nation), which was referred to as a “fair and compassionate merit-based solution” for undocumented children in the U.S. The proposed legislation is the Republican’s first step toward fixing the DACA program, although immigration advocates feel the SUCCEED Act does not go far enough. We hope this will lead to positive changes in the field of immigration that are proactive, rather than reactive, for instance creating new visa categories and labor certification exemptions for shortage occupations that will address the continually changing economic landscape.
As we ponder the immigration debate, including our own personal journeys, we should remember that the road traveled by over 11 million unauthorized migrants once included Japanese laborers who migrated to Hawaii to work on the sugar plantations at the acquiescence of both the Japanese and U.S. governments in the year 1884.
Whatever the cause or source of our current state of immigration (a topic to be saved for another time) one thing is for certain –