The American Dream: Daca, Dreamers, and Comprehensive Immigration Reform

• Publication year: 2013

SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 1, Fall 2013

COMMENTS

The American DREAM: DACA, DREAMers, and Comprehensive Immigration Reform

Heather Fathali(fn*)

"Immigration policy shapes the destiny of the Nation . . . . The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here."

-Justice Anthony Kennedy, Arizona v. United States(fn1)

"A dream you dream alone is only a dream. A dream you dream to-gether is reality."

-John Lennon(fn2)

I. INTRODUCTION

In 2011, Maria Gomez earned her master's degree in architecture and urban design.(fn3) This is an outstanding achievement for any student. For Maria, it was the result of the same hard work and diligence she had practiced since her days as a middle-school honor student, when she first knew that she wanted to become an architect.

In high school, Maria excelled in community service, extracurricular, and school leadership activities.(fn4) She graduated tenth in her class with a 3.9 GPA and was accepted by every college to which she applied.(fn5) But she faced an obstacle most of her classmates did not: she was ineligible for financial aid because she did not have a social security number.(fn6) In fact, Maria had no legal status at all. She was brought to the United States as a child from Mexico without any documentation.(fn7) Maria is a DREAMer.(fn8)

Maria's lifelong goal was to become an architect; however, she couldn't afford to attend the University of California at Berkeley-the only state college in California with an undergraduate architecture pro-gram.(fn9) Instead, she chose to attend the University of California at Los Angeles (UCLA) while living at home and riding the bus two and a half hours each way to school every day, cleaning houses and babysitting to cover her tuition as a full-time student. (fn10) Despite the great adversity she faced, Maria was the first member of her family to graduate from col-lege.(fn11)

When Maria finally enrolled in the Master of Architecture Program at UCLA, the long and hard-earned road to her future did not get much easier. She continued to struggle financially, eating at the school food bank and sleeping many nights on the floor of the school's printing room.(fn12) But she persevered, and Maria finally realized her dream of becoming an architect.(fn13)

Upon graduation, Maria faced yet another obstacle that her colleagues did not: she could not work in her newfound profession. She was still without legal status in the United States and therefore could not legally work in any job. Employment authorization is the key that turns in motion the dream that Maria and so many others have worked so hard to achieve:I grew up believing in the American dream and I worked hard to earn my place in the country that nurtured and educated me . . . . Like the thousands of other undocumented students and graduates across America, I am looking for one thing, and one thing only: the opportunity to give back to my community, my state, and the country that is my home, the United States.(fn14)

On June 15, 2012, President Obama made an announcement that changed the lives of millions(fn15) of qualified DREAMers like Maria.(fn16) Effective immediately, the Obama administration would implement a new program-what would come to be known as Deferred Action for Childhood Arrivals (DACA)-offering eligible DREAMers both a two-year respite from the haunting possibility of deportation as well as the eligibility to apply for employment authorization.(fn17) Having employment authorization not only allows DREAMers the ability to work legally in the United States, but also qualifies them to apply for a social security num-ber.(fn18) A social security number is an essential element to life in the United States today: it opens the door to a bank account, certain student loans, credit cards, a driver's license, a cell phone plan, and countless other aspects of everyday living that most of us take for granted and would struggle enormously without.

While millions were elated by the President's announcement, he al-so faced harsh criticism. Many claimed that his action exceeded federal statutory limits, exceeded his Executive powers, and usurped congressional authority. Still others, anxious to see comprehensive immigration reform implemented, were disappointed that he had not gone further.(fn19)

This Comment will address both criticisms before concluding that DACA is within the President's power as a form of prosecutorial discre-tion and that the attendant grant of employment authorization is necessarily within the scope of that power. Part II of this Comment outlines the development of prosecutorial discretion in the law and reviews the scope of judicial review over agency decision-making. It then discusses the history and use of prosecutorial discretion in immigration law specifically and summarizes administrative guidance regarding prosecutorial discretion in the immigration context. Part III outlines the DREAM Act and DACA, explores the criticisms of DACA, and evaluates the statutory and constitutional limits of the Executive Branch authority. Part IV addresses comprehensive immigration reform and discusses how DACA is likely to influence that reform. Part V briefly summarizes, reflects, and concludes.

II. PROSECUTORIAL DISCRETION AND JUDICIAL REVIEW: A BACKGROUND

This Section describes the history and scope of prosecutorial discretion. Part II.A introduces and defines the major terminology used throughout this Comment. Part II.B outlines the role of prosecutorial discretion outside of the immigration context while Part II.C tracks the role and use of prosecutorial discretion within immigration law.

A. Definitions

The DREAM Act is a piece of bipartisan legislation that, if passed, would allow undocumented youth who arrived in the United States as children to earn legal status.(fn20) "DREAMer" is the term used to describe those youth.(fn21) The Immigration and Nationality Act (INA), enacted in 1952 and amended frequently since then, is the primary federal statute governing immigration law;(fn22) it is now hundreds of pages long.(fn23) The Immigration and Naturalization Service (INS) was the federal agency that oversaw U.S. immigration law until 2003,(fn24) and the term is used in this Comment when referring to memoranda released and cases that were adjudicated under its authority. Its functions included inspection, enforcement, and administrative duties.(fn25) The INS was replaced in 2003 by the Department of Homeland Security (DHS), a cabinet department which now oversees all immigration matters through three agencies: Customs and Border Patrol (CBP), Immigration and Customs Enforcement (ICE), and United States Citizenship and Immigration Services (USCIS).(fn26) ICE is currently the agency in charge of enforcing our nation's immigration laws within our nation's borders.(fn27) The term "prose-cutorial discretion" is used to refer generally to a law enforcement or administrative agency's authority to decide whether to pursue charges against a person.(fn28) "Deferred action" is a form of prosecutorial discretion in the immigration context, referring to the discretionary decision to not pursue removal against a person-usually based on equitable and humanitarian factors.(fn29) "Alien" is a term of art defined by the INA as "any person not a citizen or national of the United States,"(fn30) which therefore includes those with legal status, as well as those without legal status.(fn31) Other terms are defined throughout the text.

B. A Short History of Prosecutorial Discretion Outside of the Immigration Context

The prosecutor's broad discretion in deciding who and when to prosecute-or, alternatively, not to prosecute-is a principle deeply entrenched in American criminal law.(fn32) One of the major reasons behind prosecutorial discretion is the practical reality of a finite availability of resources.(fn33) To deny a prosecutor the authority to exercise discretion without having the resources to prosecute every offense has been likened to "directing a general to attack the enemy on all fronts at once."(fn34) Rather, "the prosecutor must remain free to exercise his judgment in deter-mining what prosecutions will best serve the public interest."(fn35)

Within the realm of agency decision-making, the Supreme Court has maintained a general presumption against judicial reviewability of prosecutorial discretion going back to the nineteenth century.(fn36) The Court made a short departure from precedent in the 1960s when it began to uphold judicial review of prosecutorial discretion, a transition attributed to the 1946 enactment of the Administrative Procedure Act (APA),(fn37) which established a framework for the promulgation and enforcement of regulations by federal agencies.(fn38) However, this trend was short lived; in 1975, the Court signaled a return to its earlier presumption against re-viewability of agency decision-making in Dunlop v. Bachowski.(fn39) The Dunlop Court held that judicial review of an agency's decision not to act is limited to the deferential "arbitrary and capricious" standard under APA § 706(2)(A).(fn40) Ten years later, the Court made a full and clear return to a presumption against reviewability in Heckler v. Chaney, holding that "an agency's decision not to take enforcement action is presumed immune from judicial review under...