CHAPTER 7
Although the need to work—and the availability of work—has played a central role in the rise of both immigration and undocumentedness in the past half-century, every worker is also a human being. Like everyone else, undocumented workers have children and families. The undocumented population and those personally affected through family relations by undocumentedness include much more than the single, working-age male. As border enforcement has increased over the past two decades and the circular, seasonal migration of workers has shifted to long-term family settlement, more and more children have been affected by issues of status.
Some children are undocumented themselves, while others live in mixed-status families, with one or both parents, siblings, or other relatives who are undocumented. Still others have temporary and unstable statuses. Some children, whether citizens or undocumented themselves, lose parents or other family members to deportation, while others cross the border illegally to reunite with parents they had lost to migration. Virtually all parents who come to the United States do so because they want better lives for their children; the US law claims to protect the best interests of children. But immigration law makes these children’s lives tenuous and unpredictable.
About 17 percent of all Hispanics and 22 percent of all Hispanic youth ages sixteen to twenty-five are unauthorized immigrants, according to Pew Hispanic Center estimates in 2009. These percentages refer to all Hispanics, whether native-born or immigrant. Among immigrants, the numbers are, of course, much higher. Some 41 percent of all foreign-born Hispanics and 58 percent of foreign-born Hispanic youths are estimated to be unauthorized immigrants.1
Other youth fall into in-between categories, like asylum applicants or those who have received Temporary Protected Status, wherein their presence is currently legal, but in an unstable status that could easily be revoked—what Cecilia Menjívar termed “liminal legality.”2 President Obama’s DACA program of 2012 created another temporary status, allowing certain undocumented youth a two-year respite from illegality, but with no guarantee of what would occur at the end of the two years. While immensely popular among Latinos (Romney called it a “big gift” to Hispanic voters), DACA did little to address the underlying problem of undocumentedness.3
The immigration system in general is designed to deprive undocumented adults of most rights, but, in some cases, laws designed to protect children transcend status and are applied equally to all children. Laws and policies thus struggle between two contradictory aims: to punish violations of immigration status or to protect the rights of children and their need to be with their parents. In the case of US citizen children of undocumented parents, the goal of keeping children together with their parents can contradict the goal of removing the parent, and the goal of promoting the best interests of the children conflicts with the laws that punish their parents for their status. In some cases, judges have ruled that a child’s best interest requires that he or she remain in the United States and have terminated parental rights of parents who are deported. In other cases, immigration laws prevent children from entering the United States to reunite with their parents. Undocumented youth can also be deported and face legal discrimination that prevents them from working, going to college, and receiving public benefits.
From being virtually invisible in the public sphere only a decade ago, undocumented youth, especially those who have grown up in the United States, have stepped to the forefront in organizing for immigrant rights. Their activism openly challenges the anti-immigrant propaganda and may be changing the way the citizen public views the undocumented.
YOUNG AND ALONE
The past two decades have witnessed a dramatic surge of young people fleeing their homes in Mexico and Central America and attempting the treacherous border crossing alone. They may be seeking to escape violence, gangs, or abuse at home, or they may be making a desperate attempt to reunite with parents who left them to journey to the United States. They face all of the hazards that adults face, and more.
Undocumented youth, especially Central Americans fleeing civil wars, began crossing the border alone in the 1980s. At the time, the immigrant detention system had no provisions or capacity to deal specifically with detained youth: they were simply imprisoned with and treated as adults. During 1990, the INS reported that eighty-five hundred minors had been apprehended crossing the border without documents, 70 percent of them unaccompanied. Most were Mexican and were quickly returned to Mexico under an agreement with that government. Non-Mexicans, though, were detained in immigration facilities, some for lengthy periods, awaiting immigration hearings.4
A series of lawsuits and court decisions starting in 1985 led finally, in 1997, the then-INS to develop special policies for detained minors. Under the Flores v. Meese settlement of that year, the INS developed separate standards for children that took their age and needs into account. Children would be released, if possible, to a sponsor; they would be placed in the least restrictive setting possible, and the agency would implement appropriate standards for their treatment.
A US government study in 2001 explained that most juveniles the INS encountered were still of Mexican origin and generally held for only a few hours before being returned voluntarily to Mexico. The study emphasized that the Border Patrol worked to ensure that juveniles were returned to family members or to Mexican government officials rather than being “simply dropped off across the border.”5 Most of the children who ended up in US custody, therefore, were Central American. The numbers taken into custody (rather than returned) increased rapidly over the first decade of the new century, from the low thousands to up to ten thousand a year.6 The system scrambled to keep up with the influx.
After 2002, when the INS was replaced by ICE under the new Department of Homeland Security, responsibility for detained children was transferred to the Department of Health and Human Services and the Office of Refugee Resettlement.7 And in 2003, the ORR created the Division of Unaccompanied Children’s Services (DUCS) to handle the placement of undocumented minors.8
The treatment of children in detention improved with the involvement of the social service agencies. Rather than being housed indefinitely with adult criminals, children were sent to special facilities where they had access to educational and social services, and most were released within weeks to family members in the United States (many of them undocumented themselves). Facilities must provide “classroom education, health care, socializing/recreation activities, vocational training, mental health services, case management, and, when possible, assist with family reunion.”9 According to the New York Times, “It is not unusual for youths to recall the detention shelters . . . as some of the best times in their battered lives.”10
Still, in 2006, a study found that detained minors “fall into the bewildering inner workings of the immigration and asylum system.” Despite the changes in detention provisions, immigration law did not distinguish between children and adults, and until 2004, the courts simply treated any child, no matter how young, as an adult.11 In 2012, yet another study found that children who are detained for immigration violations “enter a disjointed, labyrinthine system in which they may interact with numerous agencies within several federal government departments, as well as with a host of government contractors.”12
The automatic repatriation of Mexican children was challenged in 2008 when Congress passed the William Wilberforce Trafficking Victims Protection and Reauthorization Act. The act responded to concerns that US deportation policies were contributing to the exploitation and abuse of children. It stated that a child could not be repatriated if he or she was victim of human trafficking or had a viable asylum claim and did not voluntarily agree to be repatriated. This meant that rather than immediately returning Mexican children, ICE was supposed to evaluate each case individually.13 Still, in 2009, 70 percent of children in ORR custody came from Central America, primarily El Salvador, Guatemala, and Honduras, as most Mexican children were still simply deported.14
The number of Mexican children crossing the border alone has remained steady or fallen over the past few years, along with crossings by Mexican adults. The number of young unaccompanied minors from Central America, in contrast, has risen dramatically, doubling from 2011 to 2012. “The rush of young illegal border crossers began last fall but picked up speed this year” reported the New York Times in August 2012.15 During 2012, more than fourteen thousand youth, most of them Central American, had been taken into ORR custody. In just the first three months of 2013, seven thousand more crossed, suggesting that the record increases were continuing.16
Central America’s political and economic crises—exacerbated by US military involvement and trade policies—virtually guarantee that children will continue to try to escape. “Almost all of the children’s migration arose out of longstanding, complex problems in their home countries—problems that have no easy or short-term solutions.”17 According to the Women’s Refugee Commission, which interviewed 150 young unaccompanied border-crossers, most are fleeing gangs, drug traffickers, and violence at home. “They are willing to risk the uncertain dangers of the trip north to escape certain dangers they face at home.”18
“The conditions in Central America have deteriorated to such a point that, when the Women’s Refugee Commission asked the children if they would risk the dangerous journey north through Mexico all over again now that they had direct knowledge of its risks, most replied that they would. They said that staying in their country would guarantee death, and that making the dangerous journey would at least give them a chance to survive. Many of them expressed a longing for their homelands, stating that they would not have left but for fear for their lives.”19
The government was unprepared for the influx and was initially unable to abide by the 1997 standards. “Children were held for up to two weeks in CBP short-term hold facilities. These facilities are not designed for long-term detention or to hold children. The lights stay on 24 hours a day, and there are no showers or recreation spaces. During the influx, they were sometimes so overcrowded that children had to take turns just to lie down on the concrete floor.” The ORR began to open “emergency surge centers” where it could hold detained youth.20
The numbers arriving at the US border reveal only part of the magnitude of the problem, since the Mexican government also reported a doubling in the numbers of detentions of Central American children traveling through that country in 2012.21 Perhaps only half of the children who leave Central America even make it to the US border. Along the way, they face the same hazards that older migrants face: injury or death on the train, kidnapping, rape, torture, coercion.
It is clear that conditions for children detained crossing the border have greatly improved in the past decade. It’s also clear, though, that a situation in which tens of thousands of children flee their homelands in Mexico and Central America each year is a desperate one. It’s not enough to suggest that those countries need to solve their own problems. The United States has a long history of military, political, and economic involvement in the region, including overthrowing and establishing governments. It continues to provide economic and military support for policies and programs that is has designed and approved. These policies and programs provide enormous profits and cheap products for US citizens and corporations, while exacerbating the very social crises that underlie the out-migration. Those of us in the United States need to seek deeper solutions that go beyond offering humane treatment and social services to these children after they cross the border.
LOSING THEIR PARENTS
Even children who are American citizens are at risk of losing undocumented parents to deportation. Although the Obama administration announced early on that immigration detention and deportation would focus on individuals who had committed crimes or were a threat to national security, deportations increased dramatically under his watch, to four hundred thousand a year. Almost all of those deported were, like most undocumented immigrants, members of communities with jobs, homes, and families. Their lives intersected every day with those of US citizens. In many cases, they were the parents of US citizens.
As with the number of children crossing the border, the number of children losing their parents to deportation has also been rising. From 1998 to 2007, some 8 percent of those removed from the country were parents of US citizens; in 2011, it was 22 percent of a much larger number of removals. During the first half of 2011, over forty-six thousand parents of US-citizen children were deported. The Applied Research Center estimated that as of 2011, there were over five thousand US citizen children living in foster care because their parents were either in immigration detention or had been deported. Some were put up for adoption as incarcerated or deported parents lacked the resources to enforce their parental rights.22
The term “anchor baby” is frequently thrown around in these discussions, with the implication that giving birth to a child in the United States gives the parent some special rights or privileges. It doesn’t. The child, as a US citizen, has the right to all of the benefits that citizenship offers, including a US passport, freedom to remain in or leave the country, and access to work and social services. The undocumented status of the parent, however, is not ameliorated in any way by the existence of the so-called anchor baby. Parents of citizens can be, and are, deported on a regular basis.
The Obama administration’s 2010 and 2011 Morton Memos on prosecutorial discretion, issued by ICE director John Morton to revise agency policy, acknowledged the hardships caused for children when their parents were detained or deported. The first memo suggested that ICE “should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person.” Unfortunately, the new guidelines did not significantly reduce the numbers of parents separated from their children by ICE.23 The 2011 memo went somewhat further, specifically mentioning that one factor that ICE should take into consideration when deciding whether to prosecute a case was the immigrant’s relationship to US citizens. Still, this was one on a list of suggestions rather than a specific mandate.24
Behind the statistics are the stories: a crying baby taken from her mother’s arms and handed to social workers as the mother is handcuffed and taken away, her parental rights terminated by a U.S. judge; teenage children watching as parents are dragged from the family home; immigrant parents disappearing into a maze-like detention system where they are routinely locked up hundreds of miles from their homes, separated from their families for months and denied contact with the welfare agencies deciding their children’s fate.25
Consider the case of Sandra Molina, an undocumented immigrant from Guatemala. She married an immigrant with legal status, who became a citizen in 2009. They had two children, both US citizens. When her husband became a citizen, they decided that Sandra should return to Guatemala so that he could sponsor her to come legally to the United States. Even in the case of the spouse of a US citizen, however, there is no guarantee that legal permission will be granted. In Sandra’s case, it was denied, even though she had no criminal record or other apparent obstacle to legal entry.
She then attempted to cross the border illegally to reunite with her family, but was caught and returned to Guatemala. Now, legal entry became even more complicated. Reentry after deportation is a felony, punishable with jail time, and one of the Obama administration’s priorities for deportation is those who reentered after being deported. In Mexico, Sandra “says she feels so hopeless about her life that she has thought about ending it. ‘I just want to be forgiven,’ she said, sobbing on the phone. ‘I feel I am about to go crazy, I miss my children so much. They are all I have. I cannot go on without them.’ Back home in Stamford, her children are suffering too. The youngest cried constantly, the eldest became angry and withdrawn. Though their plight is documented in thick files that include testimony from psychologists and counselors about their need for their mother, appeals for humanitarian relief were denied.”26
The case of an undocumented Ecuadorian immigrant who was detained with her fifteen-year-old son illustrates the contradictions as different government agencies pursue conflicting goals. The mother had lived in the United States for four years and had a one-year-old daughter born here. She sent for her fifteen-year-old son, who was detained crossing the border and placed in DUCS custody. Following DUCS policy, she was called and her son was released to her. “I received a call to come pick him up,” she explained from her prison cell, “so I left my daughter with my friend who lived next door, and took a bus to Arizona to get him. I picked up my son and we went straight to the bus. At the bus station, I was approached by some officers and they detained both of us. I have been here for nine months without seeing my baby girl. She was only one year old when I left her with my friend. I don’t know what is happening with her.”27
When parents disappear into the immigration system like this, they run the risk of losing custody of their children.28 Courts may terminate parental rights after parents are deported or detained. In the criminal justice system, prisoners have guaranteed certain rights and access to services. Immigrant detainees, though, fall into a sort of constitutional and legal netherworld. The circumstances of their detention often make it impossible for them to comply with requirements for retaining custody of their children. Relatives who could care for a child in the parent’s absence may be afraid to identify themselves because they too are undocumented. From the perspective of child welfare services, the system of detention and deportation can create insuperable obstacles to the goal of enabling parents to care for their children.29 “In the child welfare system, immigrant parents are at risk of losing their children without the same constitutional due process protections in place that other parents receive.”30 An unknown number of those children are being put up for adoption against the wishes of their parents, who, once deported, are often helpless to fight when a US judge decides that their children are better off here.
In a 2007 case, an undocumented Guatemalan woman was arrested during a raid at the chicken plant where she worked in Missouri. While she was in detention, her six-month-old son was taken from her custody and put up for adoption. The judge ruled that “smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide any stability for a child.” Her parental rights were terminated and the infant was adopted. Although the Missouri Supreme Court overturned the judge’s decision in 2011, that ruling was in turn overturned by a judge who ruled that she had “effectively abandoned her son.” The mother was deported, leaving the child with his adoptive parents in Missouri.31
LEARNING TO BE UNDOCUMENTED
Other undocumented children, some of the most politically active today, were brought or sent here by their parents at a young age. The United States is now raising a generation of children without documents, and the legal proposals to address their status, ranging from in-state tuition to the DREAM (Development, Relief, and Education for Alien Minors) Act, reveal the discomfort that their existence poses. “They are Americans in their heart, in their minds, in every single way but one: on paper,” President Obama declared.32 As one undocumented student put it, “I breathe, eat, and live in America and have done so since I can remember.”33 The president’s remarks remind us that a person’s birthplace is an almost entirely arbitrary fact. Should it really be used to determine his or her subsequent life chances?
Children, of course, don’t usually know much about status and immigration law unless their parents choose to explain the status issue to them. Generally their main interaction with state authority is through school, and since 1982, schools have been required to treat all children equally, regardless of status. In that year, the US Supreme Court’s Plyler v. Doe decision struck down a Texas law that allowed local school districts to deny entry to children who lacked legal documentation and withheld state funds for their education if local districts did choose to enroll them. The court ruled that to deny children access to education not only violated the Equal Protection Clause of the Fourteenth Amendment, but would impose an unwarranted, lifetime hardship on them and bring no benefit to the state.34 Thus, children may never confront the issue of documentation in their daily lives.
Most citizens become aware of the importance of identification documents when they are teenagers and apply for a driver’s license or for their first formal job. For the first time, they may be required to dig up a birth certificate or a Social Security card to prove their citizenship status. Jose Antonio Vargas, an undocumented immigrant from the Philippines, described the shock that many undocumented youth experience when they first become aware that there is something about their legal status that divides them from their peers. Vargas joined and propelled a growing movement among undocumented youth to break the silence, come out of the shadows, and openly challenge the system that excludes them.
In the summer of 2011, Vargas published a daring exposé of his own life story in the New York Times Magazine. He began by recounting how his mother sent him, at age twelve, to live with his grandparents in Mountain View, California, and how he struggled to learn English and excel at school.
One day when I was 16, I rode my bike to the nearby D.M.V. office to get my driver’s permit. Some of my friends already had their licenses, so I figured it was time. But when I handed the clerk my green card as proof of U.S. residency, she flipped it around, examining it. “This is fake,” she whispered. “Don’t come back here again.”
Confused and scared, I pedaled home and confronted [my grandfather] Lolo. I remember him sitting in the garage, cutting coupons. I dropped my bike and ran over to him, showing him the green card. “Peke ba ito?” I asked in Tagalog. (“Is this fake?”) My grandparents were naturalized American citizens—he worked as a security guard, she as a food server—and they had begun supporting my mother and me financially when I was 3, after my father’s wandering eye and inability to properly provide for us led to my parents’ separation. Lolo was a proud man, and I saw the shame on his face as he told me he purchased the card, along with other fake documents, for me. “Don’t show it to other people,” he warned.35
The Philippines offers a particularly convoluted case of the meaning of immigration, citizenship, and documents, since it was a US colony for the first half of the twentieth century and Filipinos were unilaterally deemed to be US nationals who could travel freely to the mainland until 1934. (The category “national” was created early in the twentieth century to apply to people who lived in newly acquired US territories in the Caribbean and the Pacific. They were essentially stateless people, with no country and no citizenship.) Tens of thousands of Filipinos were recruited legally to the United States through nursing and military exchange programs after that, while the United States maintained an enormous military presence there. Vargas’s migration was a product of this history, as well as the twists and turns of US immigration law.
In the Philippines, Vargas’s great aunt married a Filipino American who was serving in the US military, starting a family chain of migration. Using the family preferences built into the law, she petitioned for her brother and his wife (Vargas’s grandparents), who entered the country on immigrant visas in 1984 and later became naturalized citizens. The grandfather then petitioned for his two children. Citizens, however, can only sponsor children who are unmarried. Vargas’s mother was single; she and her husband had separated almost a decade earlier. But fearing that immigration would consider the petition fraudulent based on her previous marriage, the grandfather decided to withdraw it.
Then the family entered the netherworld of false documents, obtaining a doctored passport and green card (resident alien visa) and sending twelve-year-old Jose with a coyote—who, he was told, was his uncle—to live with his grandparents in 1993. The boy never knew of the extra-legal nature of these arrangements or that there was anything unauthorized about his presence in the United States.
Vargas’s experience coming of age, symbolized by his rebuff at the DMV, falls within what sociologist Roberto Gonzalez describes as the “transition to adulthood” for many undocumented youth. As Gonzalez explains, becoming an adult also involves a “transition to illegality” as “public schooling and US immigration laws collide to produce a shift in the experiences and meanings of illegal status for undocumented youth at the onset of their transition to adulthood.”36 These youth, while treated equally under the law during their childhood, are excluded from the rites of passage that lead most American youth to the adult world. They are left in a “developmental limbo.” The extremely low economic status of most undocumented families pushes young people to assume more financial responsibility than their documented peers, —but they are not, officially, allowed to work. At the same time, they are cut off from other stages in the transition to majority like learning to drive, registering to vote, undertaking postsecondary education, or opening a bank account.37 It comes as a shock that the society that nurtured them suddenly closes its doors. One student wrote, “I did not think to question the pledge of allegiance or the history that was being taught to us. . . . Looking back, I should have questioned the allegiance I pledged every morning to a country that rejected me.”38
YOUTH ACTIVISM
This generation of undocumented youth coming of age in today’s United States is historically unprecedented. Most undocumented adults are individuals who were raised in another country and came here as adults. They knew life in their country of birth, and they came here of their own volition (but, of course, under historical circumstances that they did not choose). Their experience of life in the United States is that of being undocumented.
Their children, who may be undocumented as well, have a completely different life experience. They were raised and attended schools in this country, where they were repeatedly told that this is a nation of immigrants, a country that treats everybody equally. They were taught that if they worked hard, they could attend college and get a good job. They were taught that they had rights, because that’s what the schools teach children in this country. They learned about Thoreau’s “Civil Disobedience” and about Martin Luther King Jr. and struggles for racial justice and equality. At home, they were taught that their parents brought them here so that they could have a better life.
When Carola Suárez-Orozco, Marcelo Suárez-Orozco, and Irina Todorova studied several generations of immigrant youth and their experiences in US schools, they found that the immigrants of the first generation are the highest achievers. They are acutely aware of the sacrifices their parents made to provide more opportunities for them, and “these parental sacrifices propel many immigrant students to launch themselves wholeheartedly into their educational journey.”39
Learning that they are undocumented and what that means is an unexpected and unacceptable shock to many of these children. They never felt or knew that they were any different from their classmates. Consider these testimonies from students: “It’s almost like I am tied down to the ground with a ball and chain because I don’t have citizenship”; “It’s like someone giving you a car, but not putting any gas in it”; “They say you can accomplish whatever you want or set your mind to, but they don’t say that it’s just for some.”40
Just as this new generation of undocumented youth was finishing high school, the 1996 Welfare Reform Act and IIRIRA made it almost impossible for them to go to college. By prohibiting them from receiving public financial aid and depriving them of state residency, the acts effectively shut the door to higher education.41
These youth have been at the forefront of organizing for immigrants’ rights over the past decade. Access to higher education has been one focal organizing point for high-achieving students. At the state level, they fought for the right to be considered state residents and to attend public colleges and universities. At the national level, they fought for the DREAM Act, which would give them educational rights and also put them on a path to citizenship.
In Texas, Republican governor Rick Perry signed the first in-state tuition law in 2001, allowing undocumented students to be considered state residents for tuition purposes. California passed a similar law later the same year, and other states followed. As of mid-2013, fourteen states offered in-state tuition to qualified students who were undocumented.42
Some arguments about in-state tuition were strictly economic. Proponents explained that it would increase state revenues by allowing more individuals to enroll in state colleges and universities, while opponents feared that letting in the undocumented would reduce the seats available to citizen students. The number of students able to take advantage of these provisions has been small: as of 2005, there were 1,620 in the University of California and California State University systems and 5,100 in Texas, including the community college system, which accounted for about 80 percent of undocumented students.43 The Massachusetts Taxpayers Foundation estimated that such a law would allow some 350 students a year to enroll in that state, again with the majority going to community colleges.44
In-state tuition has been a state-level struggle. Only the federal government could address the larger issue of status. The DREAM Act, proposed and defeated or abandoned numerous times at the federal level, would create a path to citizenship for certain undocumented youth. The different versions of the act vary slightly on specifics, but in general they address a population that has come to be known as the “DREAMers”: young people between the ages of sixteen and thirty who were brought to the United States by their parents before they reached the age of sixteen—that is, as children—who may have crossed the border (or remained in the country) “illegally,” but not through their own will or decision. The act would extend provisional legal status to such youth for six years. If they attend college or serve in the military for two years, their provisional status could be converted into a path to citizenship.45 (Other individuals and organizations object to the military service provision, arguing that it is trying to create a de facto military draft for young Latinos, since most would not be able to afford college tuition even at in-state rates.)46
The Migration Policy Institute estimated in 2010 (based on 2006–2008 figures) that there were 2.1 million undocumented youth who were potential beneficiaries of the DREAM Act. Almost a million of these were under the age of eighteen.47
The DREAM Act was reintroduced repeatedly in both the US Senate and the House starting in 2001, and included in S. 2611, the Comprehensive Immigration Reform Act approved by the Senate in 2006 (later defeated in the House of Representatives), and S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act passed by the Senate in 2013.
Many advocates saw the rights of DREAMers as a front line in a larger struggle over the meaning of undocumentedness. By placing a sympathetic face—a high-achieving high school student—together with the term and the status of undocumented, they sought to challenge the better-known image associating the status with criminality.
Still, there was significant debate in the movement over this tactic. By emphasizing the innocence of students who were brought to the United States as young children with no choice in the matter, did the campaign tacitly accept the guilt of these students’ parents, who had made the decision? Were the students being held up as exceptional, deserving, undocumented individuals, thus implying that other undocumented people were not deserving?
While some were wary of the way the DREAM Act seemed to skim off and privilege the most publicly acceptable portion of the undocumented population, most organizations believed that it was an opening to challenge the very concept of undocumentedness. Undocumented youth who grew up in the United States do not fit the profile that many citizens hold of the “illegal immigrant.” Many of these youth feel motivated to take advantage of their relative privilege as English-speaking, assimilated, and educated members of US society to fight publicly against anti-immigrant and anti-undocumented sentiment.
The DREAM Act both responded to and created an outlet for a huge upsurge in organizing by undocumented youth. Claudia Anguiano, who studied the history of undocumented student activism in depth, outlined three phases. From 2001 to 2007, “self-identification strategies were used to create a collective group identity that countered the negative dehumanizing typecast of ‘illegal aliens’ by identifying DREAMers as exceptional students.” During the following two years, “self-representation strategies worked to unite undocumented youth through the creation of national coalitional organizations and through self-identification as undocumented and unafraid.” Finally, during 2010, “activists utilized strategies of self-reliance and self-identified as unapologetic DREAMers. The strategies of intervention included the use of civil disobedience tactics to petition for the legislation.”48
In 2009, DREAMers founded the organization United We Dream to coordinate nationally and use the tactic of coming out or telling their own stories as a political weapon. “Leaders realized that encouraging young people to recount the stories of their lives in hiding and of their thwarted aspirations could be liberating for them, and also compelling for skeptical Americans.”49 Taking inspiration from the gay rights movement, many have themselves and encouraged others to come out and hold public coming-out ceremonies. Jose Antonio Vargas suggested, in his defiantly titled essay “Not Legal, Not Leaving,” that “we are living in the golden age of coming out.”50 Coming out can be a personal liberation, but it is also part of a larger project to insist on social and legal acceptance, which means fundamentally changing the legal structures of belonging in the country and challenging the beliefs that underlie and justify anti-immigrant sentiment.
DREAM activist Gaby Pacheco accompanied much of this process. Pacheco, like Jose Antonio Vargas and so many others, learned that she was undocumented when she went to apply for her learner’s permit. She had come from Ecuador to Miami with her parents when she was about to start third grade. She began to organize for the rights of undocumented students in 2004, founding Students for Immigrant Rights in Florida and working with the Florida Immigrant Coalition and Presente.org. “From four of us that used to meet to try to pass the DREAM Act, we now have 16 chapters throughout Florida. Students Working for Equal Rights is part of the United We Dream network, which is led by students and represents 26 states,” she explained.51
In January 2010, Pacheco joined three other immigrant Florida students for a fifteen-hundred-mile march to Washington, DC, part of the ongoing and increasingly public campaign to press for the rights of the undocumented. “They said they had concluded that the exposure to immigration agents on the walk was not much greater than what they faced in their daily lives. ‘We are aware of the risk,’ [one participant] said . . . ‘We are risking our future because our present is unbearable.’” ICE declined to comment on the issue.52
“Coming out didn’t endanger me; it had protected me,” wrote Vargas. “A Philippine-born, college-educated, outspoken mainstream journalist is not the face the government wants to put on its deportation program.” He also wanted to use his case to publicize the arbitrary nature of immigration enforcement. “Who flies under the radar, and who becomes one of those unfortunate 396,906 [who are deported]? Who stays, who goes, and who decides?”53
A year after coming out, he recounted his attempt to find out what ICE planned to do about him.
After months of waiting for something to happen, I decided that I would confront immigration officials myself. Since I live in New York City, I called the local ICE office. The phone operators I first reached were taken aback when I explained the reason for my call. Finally I was connected to an ICE officer.
“Are you planning on deporting me?” I asked.
I quickly found out that even though I publicly came out about my undocumented status, I still do not exist in the eyes of ICE. Like most undocumented immigrants, I’ve never been arrested. Therefore, I’ve never been in contact with ICE.
“After checking the appropriate ICE databases, the agency has no records of ever encountering Mr. Vargas,” Luis Martinez, a spokesman for the ICE office in New York, wrote me in an e-mail.
I then contacted the ICE headquarters in Washington. I hoped to get some insight into my status and that of all the others who are coming out. How does ICE view these cases? Can publicly revealing undocumented status trigger deportation proceedings, and if so, how is that decided? Is ICE planning to seek my deportation?
“We do not comment on specific cases,” is all I was told.54
Amid increasingly visible activism and sympathetic media coverage, Congress took up the DREAM Act again at the end of 2010. Although it passed the House of Representatives, advocates could not muster enough votes to overcome a Senate filibuster.
Most Republicans opposed the DREAM Act in the 2010 vote, even some who had supported previous attempts. The House was about to be turned over to a Republican majority. For some DREAMers, it was time to shift away from a legislative strategy. “In a meeting after the vote with Senator Harry Reid of Nevada, the majority leader, Ms. [Gaby] Pacheco said she grabbed him and whispered in his ear. ‘You know the president has the power to stop deporting us,’ she said. ‘You know you could tell him to do this.’ Startled, Mr. Reid gave her a hug and walked away.” In early 2011, United We Dream decided to change its focus to the president. At the National Council of La Raza meeting in Washington in July, when Obama tried to explain that he could not bypass Congress to push for immigrants’ rights, DREAMers “erupted in shouts: ‘Yes you can! Yes you can!’”55
Meanwhile, Obama’s June 2011 Morton Memo specifically included DREAMers as a category meriting “prosecutorial discretion,” essentially advising that ICE refrain from prosecuting them for immigration violations. (See chapter 8 for a more detailed discussion of prosecutorial discretion.) DREAMers saw this as a concession and an opening for further action.
In March 2012, Florida Republican—and potential vice presidential candidate—Marco Rubio announced that he was preparing to propose his own version of the DREAM Act. While reluctant to address specifics, Rubio emphasized that unlike previous versions of the act, his would not open a path to citizenship for undocumented youth. “I think that one of the debates that we need to begin to have is a difference between citizenship and legalization . . . You can legalize someone’s status in this country with a significant amount of certainty about their future without placing them on a path toward citizenship, and I think that is something that we can find consensus on,” Rubio explained. DREAM Act supporter and Democratic senator Harry Reid declared scornfully that this was a “watered-down version” that he would do “everything in his power” to oppose.56
Still, Democrats worried about ceding momentum—and possibly Latino votes—to the Republicans during an election year. DREAMers praised Rubio’s step, and they continued to challenge Obama to take presidential action. In May, they presented the administration with a letter signed by over ninety law professors outlining legal precedents and steps that the president could take to halt deportations of undocumented youth.57
“[Rubio’s] plan puts Obama in a box,” the Washington Post reported. “Democrats are reluctant to see Rubio’s efforts as anything other than a political gambit to repair his party’s tarnished image with Hispanics and boost his own profile as a potential vice-presidential pick or future White House contender. But if Obama does not at least try to work with Rubio, he could risk losing a centerpiece of his appeal to Hispanic voters—that he is their fiercest ally in Washington and that the GOP is to blame for lack of action on fixing the country’s immigration ills.”58
In June, Obama regained the initiative for the Democrats when he announced his DACA program.
DACA
Much smaller than a comprehensive immigration reform, smaller even than the DREAM Act, DACA offered a two-year respite to young people who, Obama said, were American “in every single way but one: on paper.” “We’re a better nation than one that expels innocent young kids,” he explained.59 While his announcement was celebrated by many young undocumented immigrants and organizations that advocate for immigrant rights, it did not make those young people “American,” and like the DREAM Act, it implicitly raised questions about the very nature of status and illegality that were uncomfortable for both DREAMers and their opponents.
DACA followed the DREAM Act in addressing people thirty and under who had arrived in the United States before age sixteen and had lived here continuously since 2007 and were in school, high school graduates, or veterans. (Vargas, who had just turned thirty-one, was thus excluded.) Unlike the DREAM Act, however, DACA did not open up a path to citizenship. It was limited to relief from deportation for two years and, during those two years, permission to work.
The Pew Hispanic Center estimated that up to 1.4 million youth would be eligible for DACA, half of them under eighteen and half eighteen to thirty and either enrolled in school or high school graduates. Seventy percent of these were from Mexico. Together, DACA candidates represented just over 10 percent of undocumented immigrants in the United States.60
During the first month (August 16 to September 15), US Citizen and Immigration Services (USCIS) received 82,361 applications.61 A month later, the agency announced that 179,794 DACA applications had been received, and 4,591 approved.62 By April 2013, the USCIS reported a total 488,782 received, and 472,004 approved. The vast majority of applicants were from Mexico (354,002), followed by El Salvador (18,949), Honduras (12,603), and Guatemala (11,817).63
Grace Meng from Human Rights Watch pointed out that DACA was aimed at only a certain sector of immigrant youth. “The program’s idea of ‘American’ is unlikely to include the children who picked the oranges for your juice or the tomatoes on your hamburgers,” she explained. The children of migrant farm workers, she points out, are more likely to be out of school—they drop out at four times the national average—and less likely to have the documentation of continuous presence required to qualify for DACA. It is clear, Meng writes, that
the program of deferred action was not designed for child farmworkers who, like many immigrants throughout U.S. history, live very different lives than middle-class, suburban kids. . . . It’s not surprising that the Obama administration designed a program for the best and the brightest immigrant children. But the fact that deferred action will probably exclude many farmworker children underscores how much immigration law is out of sync with the reality of an economy that depends on unauthorized immigrants.64
By proposing an immigration reform—whether one as far-reaching as the DREAM Act or one as limited as DACA—for this restricted group of people, policymakers and advocates suggested that this group—and, implicitly but inevitably, not other groups—deserved access to some sort of legal status. By recognizing these young people as American, the implication was that other undocumented people were not American, but rather irredeemably foreign. If these young people were defined as innocent—because they were brought to the United States by their parents before they were old enough to make an independent decision—then their parents, who made the decision and brought them, were by implication guilty.
When Senators Robert Menendez (D-New Jersey), Dick Durbin (D-Illinois), and Harry Reid (D-Nevada) introduced a recent version of the DREAM Act in May 2011, they presented it in precisely those terms. The act, Reid claimed, was for “children brought to this nation by their parents through no fault of their own.” “We should not punish children for their parents’ past decisions,” Menendez added. Senator Ben Cardin (D-Maryland) agreed that “we should not hold innocent children responsible for the sins of their parents.”65
Many children found it difficult to accept the logic that counterpoised their own innocence with their parents’ guilt. As one DREAMer protested, “I was brought to this country by a very courageous woman. She’s my hero. She’s my mother. She left everyone and everything she knew behind in order for her to give me a better life. . . . I’m not going to blame her. . . . I thank her for bringing me here.”66
Referring to the internal border that separates the undocumented from the rest of US society, another DREAMer wrote,
Is it possible that DACA is also perpetuating this internal border? DACA passed largely due to the pressure that was being put on politicians and President Obama by DREAMers. But, I began to question, what else could have influenced the passing of DACA? The strong movement of DREAMers started getting exposure to the general public of the country and the movement made many people question why these students . . . were being punished. DREAMers began to make this internal border visible to the country. . . . In order for the United States to keep perpetuating undocumentedness as an unwanted and illegal “thing,” they chose to help us in a way that keeps us in the same state of second-class citizenship with a nicer title and stops the general public from continuing to ponder this question. . . . Undocumentedness allows the country to keep its cheap labor and discriminate against non-whites. And, with undocumented students out of the immediate picture of undocumentedness, the continual perpetuation of undocumented people as outsiders can continue to thrive.67
Many argued that DACA was a first step rather than a solution. “‘By having this relief and having access to greater resources we can begin to push harder for relief for the entire community,’ said Lorella Praeli, advocacy director of the group United We Dream. ‘This fight for DREAMers in our community has never been about ourselves. . . . It’s been about our families.’”68 Just a month after the 2012 election, United We Dream agreed upon a new platform demanding “an inclusive pathway to citizenship.” A New York Times reporter described the meeting:
Their decision to push for legal status for their families was intensely emotional. When they were asked at a plenary session how many had been separated by deportation from a parent or other close family member, hundreds of hands went up. They were critical of Mr. Obama for deporting more than 1.4 million people during his first term.
“When Obama is deporting all these people, separating all of our families, I’m sick and tired of that,” said Regem Corpuz, a 19-year-old student at the University of California, Los Angeles, who was born in the Philippines.
“Our families’ dreams were to get a better future,” said Ulises Vasquez of Sonoma County, Calif., “but our future is with our families together.”
At the meeting, several parents followed their children’s lead and held a coming-out ceremony to tell their stories publicly for the first time.69
Other contradictions plagued DACA as well. Presidential candidate Mitt Romney announced that, if elected, he would immediately halt the program upon taking office, though he said he would not revoke the status of those who had already been approved. With Obama’s election, the program seemed secure at least for the two years initially announced. But many of those who it was designed to help found themselves caught in the multiple contradictions of the immigration system, which DACA could not transcend.
For many young immigrants, the very documents they needed to supply to prove that they fulfilled the program’s requirements were precisely those that they lacked. As the New York Times asked, “How do you document an undocumented life?” Particularly difficult were work records. For those who worked off the books and were paid in cash, no records documented the transactions. For those who used false Social Security numbers, submitting the evidence incriminated them in another crime. Moreover, employers were reluctant to unearth or provide records that could implicate them, too, in legal problems.70
Furthermore, DACA did not affect the actions of ICE, which was pursuing deportation cases against a significant number of potential recipients. Instead, it placed two branches of the Department of Homeland Security against each other: while USCIS administered DACA, ICE attorneys were still charged with pursuing deportation cases. With 325,000 cases pending in its backlogged system, ICE found itself prosecuting—and even deporting—young people, even as USCIS was reviewing or approving their applications for deferred action.71
Obama also disappointed many DREAMers when he announced that DACA recipients would be excluded from federal health-care programs under the Affordable Care Act (including Medicaid and federal subsidies for purchasing private insurance), even though immigrants deemed “lawfully present” were eligible. The New York Times noted ironically that “immigrants granted such relief [i.e., Deferred Action] would ordinarily meet the definition of ‘lawfully present’ residents. . . . But the administration issued a rule in late August that specifically excluded the young immigrants from the definition of ‘lawfully present.’”72
The Department of Homeland Security left it up to individual states to decide whether people with DACA status could obtain a driver’s license or receive state-level benefits like in-state tuition at state colleges and universities. Arizona’s governor declared that DACA youth were not eligible for driver’s licenses, while Massachusetts became the first state to make them eligible for in-state tuition. In Michigan, the Secretary of State’s office announced that DACA youth would not be able to obtain a driver’s license. “We rely on the federal government to tell us who is here legally; we don’t determine that,” the office explained. “So far, the federal government has not provided information to the states indicating that DACA grants that legal status.” As one Michigan DACA recipient put it wryly, “I’m caught in this situation where I can go to work, I can go to school, I’m legal here, but I can’t go to work and can’t go to school.”73
As President Obama celebrated his victory in the 2012 election, he highlighted immigrant youth. “We believe in a generous America, in a compassionate America, in a tolerant America open to the dreams of an immigrant’s daughter who studies in our schools and pledges to our flag, to the young boy on the south side of Chicago who sees a life beyond the nearest street corner, to the furniture worker’s child in North Carolina who wants to become a doctor or a scientist, an engineer or an entrepreneur, a diplomat or even a president,” the president proclaimed stirringly.
“Obama was very clearly referencing the immigrant youth who he’s supported with his backing of the DREAM Act and deferred action,” said Julianne Hing, Colorlines immigration reporter. “But it should be noted that his support came largely because immigrant youth have put his feet to the fire and relentlessly demanded more humane treatment of undocumented youth and their families.”74 The Senate’s comprehensive immigration reform bill (S. 744) passed in June 2013 included the most generous version yet of the DREAM Act, but as the bill subsequently stalled in the House, the future for immigrant youth remained as uncertain as ever.