by Adina Appelbaum
On July 15, 2012, the Obama Administration announced the Deferred Action for Childhood Arrivals (DACA) initiative, a program that has the potential to help as many as 1.76 million young immigrants avoid deportation and obtain work authorization for two years. To qualify for the program, individuals must be under the age of 31; have arrived in the U.S. before turning 16 and resided in the country for at least five years; be enrolled in or have graduated from high school (or have a GED or be a veteran); and have no felonies or significant misdemeanors, among other requirements.
Undocumented students line up at Navy Pier to apply for deferred action.
Source: John H. White, Chicago Sun-Times
to prohibit discrimination and promote the best interests of the child. DACA’s weaknesses thus represent an opportunity to illuminate why a more comprehensive immigration reform is needed. Convention on the Rights of the Child (CRC)
As of October 12, of applications has offered little promise for those willing to bargain: as of last month, just their anonymity – arguably the only protection they have – in exchange for benefits the State should already be providing them to meet international standards. Second, immigrant youth granted deferred action will have fewer, and only temporary, benefits compared to other legal residents. Benefits are given on discriminatory terms, and there is no guarantee that the benefits individuals have traded their anonymity for will not be withdrawn.
and the Office of the United Nations High Commissioner for Human Rights (UNHCHR) conducted a July 2010 study on this issue. The study notes that the CRC “applies to every child, regardless of categorization, or of his or her nationality or immigration status.” Regarding the best interests standard, the study clarifies that in “all actions concerning children…the best interests of the child shall be a primary consideration…overriding conflicting provisions of migration policy.” The principle of non-discrimination and the best interests standard are children’s rights tools that may be used to evaluate the impact of immigration policies such as DACA on youth immigrants.
DACA raises concerns under the non-discrimination and best interests principles regarding detention and return, separation of families, and health within the State. First, under Article 37 of the CRC, detention of children should be avoided. The Special Rapporteur on the human rights of migrants has asserted, “detention of children will never be in their best interests,” and recommended the principle of non-deportation of unaccompanied children. Deportation can lead to children being discriminatorily returned, alone, to places where they are not safe, antithetical to the best interests of the child. DACA is merely a decision not to pursue removal in the short term for two years.
Second, separation of families and unaccompanied minors is a concern of DACA.Furthermore, if detained and/or deported as a result of being denied from the program, immigrant youth will also be likely separated from their families. Migrant youth are especially vulnerable to trafficking, child labor, and poverty, all which are exacerbated by the separation of families and which can lead to children becoming unaccompanied minors. By raising these potential consequences, DACA does not encourage the best interests of the child.
DACA is probably the best immigrant rights action that could have been initiated in President Obama’s pre-re-election political climate, and the right to work authorization will change many immigrant youth’s lives. Nonetheless, DACA presents an unsavory trade off now. The program asks this group of young individuals to trade their anonymity for temporary rights the U.S. already should provide, without any guarantee the benefits they have gained will not be withdrawn. Individuals granted deferred action will also receive fewer benefits than other legal residents, and lack a basic safety net of health care and benefits. They will face a new risk to detention and deportation and separation from their families.
DACA must be a stepping-stone to a future complete DREAM act and/or comprehensive immigration reform. We cannot risk the fate of youth immigrants’ lives, waiting to see whether DACA is challenged or if Obama reauthorizes the program after two years. Migrant children face particular needs and challenges to their human rights. Policies targeting them must be particularly sensitive to their best interests and never put them more at risk. If the U.S. government wants to meaningfully promote the best interests of the child, a substantial legal commitment to protecting the interests of young immigrants is crucial. As a policy that adds further uncertainty to the already unstable and undocumented lives of many young immigrants, DACA is effectively gambling with their rights.