The Hill (Op-Ed)
By John Sandweg
August 02, 2017
On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced the creation of the Deferred Action for Childhood Arrivals (DACA) program. Later that afternoon President Obama took to the Rose Garden. Almost immediately, young people across the country celebrated the announcement that the Department of Homeland Security (DHS) would make it a bit easier for them to participate in the American dream.
I was fortunate to serve at DHS during the development of the program. Rarely did any new policy or program make as much sense as DACA. Not only did it provide an opportunity for young people, who have known no other home but America, to step out of the shadows and obtain work authorization card, it also made our efforts to focus immigration enforcement resources on those who threaten public safety more efficient.
Making these youngsters ineligible for deportation made the work of our officers and agents easier and helped ensure that our limited enforcement resources were focused on the worst first. It is no coincidence that in the years after DACA was created Immigration Customs Enforcement (ICE) was able to deport a record number of convicted criminals.
Nothing about the use of deferred action to streamline our enforcement capabilities was unusual or without precedent. The program was built on a strong legal foundation. Long before the creation of DACA, ICE and other DHS agencies routinely used deferred action to delay or set aside the potential that an individual would be deported. The legal framework for DACA was established years earlier and federal courts consistently emphasized that DHS held broad discretion to determine how best to enforce the immigration laws.
Although the use of deferred action was well established and DHS’ discretion was consistently recognized by the courts, we still undertook a careful legal review of the program prior to its unveiling. A team of lawyers from multiple agencies were tasked with analyzing the legality of the program. Not surprisingly, this multi-agency team, which included career immigration law experts and relied on the Supreme Court’s pronouncements, confirmed that the creation of the program was well within the secretary’s authority.
The program was an immediate success. Hundreds of thousands quickly signed up. All submitted to biometric and biographic background checks. Those that had committed serious crimes were denied and referred to ICE for possible enforcement actions. No taxpayer resources were used in processing these requests — those who sought to participate in the program paid a hefty fee that covered the government’s expenses.
None of those selected to participate in this program were given a free pass. In order to receive a grant of deferred action, individuals had to meet exacting eligibility requirements. Even after demonstrating they met the criteria, DACA beneficiaries were given very little. All they received was a two-year term of protection, that could be rescinded at any time. They did not receive any immigration status or path to citizenship. While this revocable promise did not amount to much from a legal perspective, it means everything to the beneficiaries.
Last month attorneys general in 10 states threatened to take legal action if the Trump administration did not start phasing out DACA by September 5th. In response to this threat, then-DHS Secretary Kelly declined to commit to defending the program should legal action be brought.
While the Trump administration deserves credit for its initial decision to allow DACA to continue, it must defend the program against any legal challenges. The legal basis upon which this program was built is strong and courts have already dismissed earlier suits that attempted to eliminate the program.
Elimination of this program would do nothing to bolster immigration enforcement. It would not make our borders more secure, nor would it make our streets any safer. In fact, elimination would only hurt the enforcement system, further clogging the overwhelmed immigration courts, while making the already difficult lives of these hard-working young men and women more difficult. Of course, those who oppose this program are not concerned with good policy. Sadly, opposition stems from the politics of immigration which far too often force us to adopt nonsensical policies and programs.
The young people that took to the streets that day in 2012 were right to celebrate. It is rare to find a policy that simultaneously enhances immigration enforcement while also helping a deserving population. DACA does that. I hope that the Trump administration finds a way to defy the forces of immigration politics, vigorously defend the program, and keep providing a small opportunity for a deserving group to get a little closer to their dreams of becoming Americans.
John Sandweg is the former acting director of U.S. Immigration and Customs Enforcement and served as the acting general counsel of the U.S. Department of Homeland Security.
The views expressed by contributors are their own and not the views of The Hill.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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