Deferred Action for Childhood Arrivals: A Risky Step Forward for Youth Immigrant Rights

by Adina Appelbaum

Twitter: @abappelbaum

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

DACA represents a step in the right direction for child and young adult immigrant rights. In the short-term, applicants granted deferred action may be free from deportation, obtain crucial employment authorization and a Social Security number, have an incentive to stay in school, and be able to “come out” from living in the shadows of lacking proper legal documentation.

On the other hand, the significant uncertainty of DACA as a discretionary presidential action, which makes no permanent legal change in a person’s immigration status, means there is a substantial chance it could do more harm than good. The risks are even greater for unaccompanied children. The precarious nature of DACA is arguably not in line with the intentions of Articles II and III of the Convention on the Rights of the Child (CRC) 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.

At first, this argument appears counterintuitive. Isn’t DACA a hard-fought win for immigrant advocates and the DREAMers movement? But those who are eligible for DACA have demonstrated concern about the program’s limbo-like nature. As of October 12, U.S. Citizenship and Immigration Services had received a total of only 179,794 applications despite the eligibility of almost two million people. Online commentaries and word of mouth in the immigrant community had also highlighted concerns with the prospects of the program in the face of a potential Romney presidency. Additionally, the low acceptance rate of applications has offered little promise for those willing to bargain: as of last month, just 4,591 had been approved, though it is likely many applications have been stuck in the pipeline. These numbers underscore the problems presented by DACA to young immigrants in two key ways. First, DACA asks undocumented immigrant children and young adults to trade away 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.

The CRC, signed though not ratified by the U.S., represents a universal standard by which to evaluate a state's actions regarding the rights of the child. The principle of non-discrimination, Article II, is a cornerstone of the CRC. The best interests standard derived from Article III is also one of the CRC’s guiding principles, and is commonly used in U.S. family law. International bodies have recently applied these concepts to the protection of the rights of the child in the context of migration: the Committee on the Rights of the Child held a “Day of Discussion” in September to promote this objective 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. Without any path to legal immigration status, DACA presents considerable risks to detention and deportation and thus the best interests of immigrant children. DACA is merely a decision not to pursue removal in the short term for two years. Limited confidentiality provisions mean that applicants’ information from an application may be shared with U.S. Immigration and Customs Enforcement and be used against them in future deportation proceedings. In fact, if deferred action is denied, an applicant may also be deported. DACA therefore asks undocumented immigrant youth to trade their anonymity, and perhaps relative safety from deportation, for a chance to be free from deportation only in the short-term. This tradeoff exists in the context of the already-existent U.S. stated intention to prioritize the best interests of the child. Without any certainty that DACA will be extended for beneficiaries after two years, the temporary nature of the program means the best interests of this vulnerable group are far from in primary consideration. 

Second, separation of families and unaccompanied minors is a concern of DACA. DACA distinguishes immigrant youth with specific qualifications from their families and does not allow individuals who are granted deferred action to bring family members to the U.S. or include those who are in the country in their applications. This means that the program is likely to separate families regarding legal statuses, as well as physically. 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.

Third, DACA beneficiaries have been excluded from the Affordable Health Care Act. As a result individuals will be discriminatorily treated as undocumented in health matters even though other lawfully present individuals are eligible under the act. DACA also does not stipulate eligibility for Medicaid or food stamps. Under Article 24 of the CRC, all children within a state, including those who are and are not undocumented have the right to “receive affordable health care.” Access to health care is in the best interest of the child, and migrant children are especially vulnerable to lacking access to care due to high costs and lack of information. Still, DACA does not facilitate the realization of the right to health care for immigrant youth. DACA is discriminatory and against the best interests of the child in other respects as well.

The $465 application filing fee; general frequent lack of passports, records, and other documentation that occurs for this undocumented group of people; and inability to appeal a negative decision severely limit access to applying to DACA for many persons who might otherwise be eligible.

The presidential election until recently added yet another layer of risk, signifying potential uncertainty in future elections and the politicization of this program: republican presidential candidate Mitt Romney stated that he would have ended the program if elected. Though President Obama is unlikely to end this program, the discretionary nature of the program and its susceptibility to political whims or future presidents’ actions could have dire consequences for immigrants. Individuals previously off the government’s radar who have registered with government officials under DACA will be more vulnerable to any potential restrictive anti-immigrant policies in the future.

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.