A return to the rule of law
Immigration enforcement is being turned into a vigilante system. The Dream Act can fix it.
WTrump announced the end of the Deferred Action for Childhood Arrivals program in September, he also punted. He left it to Congress to decide if the country would extend lawful immigration status, via the long-stalled Dream Act, to undocumented immigrants brought to the United States as children.
There are compelling humanitarian and economic reasons to pass the bipartisan bill. The so-called Dreamers make real contributions to our society — 800,000 of them made use of DACA to further their educations and do essential work in our communities. Many have loved ones who are U.S. citizens and lawful permanent residents. Dreamers are American in every sense of the word except for their immigration status.
But another, equally compelling reason to support the Dream Act is often overlooked. With the Trump administration turning immigration enforcement into a vigilante system, the Dream Act can help bring the rule of law back to immigration law.
To understand why, consider how the U.S. immigration system works. It is extremely difficult to come to the United States legally. For many, there simply is no line to stand in. If you haven’t gone to college, it is virtually impossible to immigrate to work here.
And yet jobs are available for immigrants without advanced educations. They do work that keeps U.S. companies competitive in the global economy, and for generations, we have tolerated high levels of immigration outside the law.
Now more than 10 million people live in the United States without lawful status. They and their children have become part of American society because, in practical terms, government policies have invited them to come to work. The law says they shouldn’t be here, but we turn a blind eye to reality if we pretend to be shocked that they are breaking the law.
There is plenty of room for debate on what to do about the undocumented millions who are here. But no matter what path we choose, it must be consistent with the rule of law. For those who want stronger enforcement, that means deport them all, immediately. But adhering to legal standards isn’t so simple. Some kinds of enforcement can actually undermine the rule of law.
For any unlawful act, no matter if it’s serious or minor, it’s important to the integrity of the system how we identify violators, how we choose which ones to pursue, and how we punish them. If we do those things inconsistently, in secret, or on the basis of prejudice, we are not upholding the rule of law. We can agree, I hope, that it would be wrong to only go after violators who belong to a particular race or religion.
When DACA was established in 2012, it brought the rule of law back to at least one part of immigration enforcement.
In 2011, then-director of Immigration and Customs Enforcement John Morton tried to address inconsistent enforcement by issuing guidelines for federal personnel to follow in deciding who would be targeted for deportation. Longtime residents with clean records and strong ties to the community — including the elderly, veterans, students and parents of young children — would be low priorities for enforcement, and high-risk offenders would be high priorities. These guidelines met stiff resistance from some ICE offices and agents in the field. The union representing more than 7,000 agents didn’t let its members participate in related training; its president became an outspoken critic of the guidelines; and finally, the union unanimously voted no confidence in Morton. Predictably, the guidelines failed to produce the consistency in enforcement that the central ICE office tried to achieve.
DACA was one key response. It replaced the uncontrolled discretion of individual field officers with a centralized system that took some immigrants — the Dreamers — out of the enforcement pool. ICE officers responded by suing to block the program, but DACA introduced an application form, eligibility rules, a fee. A central office in the Department of Homeland Security still had ultimate discretion to grant or deny DACA status, but there was transparency and a standard against which proper and improper enforcement could be judged — the rule of law.
The Trump administration’s policy is not to have immigration enforcement guidelines, and canceling DACA is in keeping with that strategy. Everyone without lawful status is fair game. So viewed, that policy might seem simply like a different way to approach the rule of law: zero tolerance.
But practically speaking, the government can’t deport 10 million people — especially not without mass violations of the Constitution — so zero tolerance or not, someone is picking enforcement targets. The administration’s policy amounts to letting individual federal agents make decisions about who they think should be deported or allowed to stay.
The real-world result is a tremendous risk of discrimination and other illegal enforcement behavior. Even if we assume that most ICE officers won’t do anything wrong, the potential for abuse is heightened by a political climate super-charged with anti-Mexican and anti-Muslim sentiments, some coming from the president himself. The enforcement system is tilting toward vigilantism on a federal government payroll, the very opposite of the rule of law.
The Dream Act would respond by bringing longtime members of American society out of the shadows for good and give them a chance to contribute substantially to our national prosperity. Just as importantly, it would advance the rule of law by bringing immigration enforcement, for Dreamers and their loved ones, into the light of day.
Hiroshi Motomura is the Susan Westerberg Prager Professor of Law at the UCLA School of Law and the author of “Immigration Outside the Law,” published by Oxford University Press.