DACA ELIGIBLE STUDENTS SHOULD NOT BE REMOVED FROM THIS
COUNTRY AND SHOULD BE ELIGIBLE FOR ADVANTAGES LIKE
FINANCIAL AID
By
Selene C. Vázquez
A Thesis Submitted to the Faculty of
The Harriet L. Wilkes Honors College
in Partial Fulfillment of the Requirements for the Degree of
Bachelor of Arts in Liberal Arts and Sciences
with a Concentration in Law and Society
Wilkes Honors College of
Florida Atlantic University
Jupiter, Florida
May 2017
DACA ELIGIBLE STUDENTS SHOULD NOT BE REMOVED FROM THIS
COUNTRY AND SHOULD BE ELIGIBLE FOR ADVANTAGES LIKE
FINANCIAL AID
by
Selene C. Vázquez
This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Mark Tunick, and has been approved by members of her supervisory committee. It was submitted to the faculty of The Honors College and was accepted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences.
SUPERVISORY COMMITTEE:
______Dr. Mark Tunick
______Dr. Timothy Steigenga
______Dean Ellen Goldey, Wilkes Honors College
______Date
ii
ACKNOWLEDGEMENTS
Foremost, I would like to express my sincere gratitude to my thesis and academic advisor, Dr. Mark Tunick, for the continuous support throughout my undergraduate experience, for his patience, motivation, mentoring, insightful comments, and hard questions.
His guidance has been instrumental not only in writing this thesis but also in and outside the classroom, in Moot Court competitions the past four years, and throughout every summer internships I have been a part of, which include the most recent one in Washington, D.C. I would also like to thank my Spanish Advisor, Dr. Miguel Vázquez, for his continuous support and encouragement to persevere forward no matter what challenge may lay ahead.
Thank you for encouraging me to seek a Spanish concentration, walking me through Don
Quijote de la Mancha and developing in me a love for la lengua Española. I could not have imagined having better advisors and mentors throughout undergraduate school.
Attending college and receiving my diploma as a first-generation student has been made possible in large part because of my advisors and the Harriet L. Wilkes Honors College community at FAU. Thank you to everyone else who contributed in one way or another— especially First Sergeant Milton McGruder, Dr. Monica Maldonado, Sandy Ogden, Norma
Pagan, Kristin Skarie and Dr. Timothy Steigenga. My sincere thanks also goes to my closest friends: Arushi, Chenchen, Christina, Idia, Michael, Monique, Nicholas, Priscilla, Sarah and
Wheeler for getting me through senior year, and to my Student Government team.
Last but not the least, I would like to thank my family: my parents Carlos A.
Vázquez, Sr. and Xochilt Gonzalez and my brother Carlos A. Vázquez, Jr. Thank you for your unconditional love, support and example. I am grateful for all that you have done for me. This accomplishment would not have been possible without any of you.
iii
ABSTRACT
Author: Selene C. Vázquez
Title: DACA Eligible Students Should Not Be Removed from
this Country and Should Be Eligible for Advantages like
Financial Aid
Institution: Florida Atlantic University
Thesis Advisor: Dr. Mark Tunick
Degree: Bachelor of Arts in Liberal Arts and Sciences
Concentration (s): Law and Society
Year: 2017
The United States is founded on the principles of liberty, democracy and equality.
Many individuals leave their home countries in the hope of enjoying these American ideals. The young children who are brought along on the journey quickly assimilate, yet as they grow older society teaches them they are different. Deferred Action for Childhood
Arrivals, an executive order, allows certain unauthorized immigrants who entered the country as minors to receive a renewable deferred action from deportation and a work permit. Drawing on legal scholarship and works of political theory, I argue that if these minors can prove they are people of good moral character, exemplary students and positively contribute to our society, then they should not be inhibited from pursuing higher education but rather should be afforded the same advantages as the rest of the children they grew up among.
iv
To Mom, Dad, Carlos and all who have supported and encouraged me
Thank you for giving me the strength and motivation to go on
To all DREAMers
Continúen su batalla, mantengan la esperanza y no se den por vencidos
TABLE OF CONTENTS
1. Introduction ...... 1
2. Chapter I: Historical Background ...... 6
a. Local Unwelcoming Attempts at Finding a Solution to Immigration ...... 6
b. Deferred Action for Childhood Arrivals (DACA) - A Federal
Attempt at Finding a Solution ...... 10
c. Political Uncertainty for DACA Recipients ...... 12
3. Chapter II: College Tuition and Financial Aid ...... 15
a. Difference Between In-State and Out-State Tuition Costs ...... 16
b. Tuition in the State of Florida ...... 17
c. Tuition as It Pertains to DACA Eligible Recipients and
Undocumented Aliens ...... 18
d. Financial Aid ...... 20
4. Chapter III: Immigration and Freedom of Association...... 25
a. Importance of Freedom of Association and Members Rights in
One’s State ...... 25
b. Membership Rights with Respect to DACA ...... 27
c. The Putney Debates and the Fear of Voting Rights ...... 29
5. Chapter IV: Utilitarian and Economic Arguments ...... 36
a. Common Economic Arguments Against Immigration ...... 37
b. Economic Benefits of Immigration Response: An Economic Spotlight
on DACA ...... 37
c. Economic Costs of Removal Of 11.4 Million from U.S...... 42
v
6. Chapter V: Fairness and Social Arguments ...... 45
a. Moral Arguments for Fairness ...... 45
i. DACA’S Unjust or Undeserved Punishment ...... 46
ii. Moral Luck...... 47
iii. DACA’s Lack of Access to Their Piece of the Pie or the
Potluck Perspective ...... 49
b. Legal Arguments for Fairness ...... 50
7. Conclusion ...... 53
8. Appendix ...... 55
a. List of Tables ...... 55
b. List of Illustrations ...... 59
9. Reference ...... 62
vi
INTRODUCTION
According to the most recent estimates issued by the Department of Homeland
Security (DHS) Office of Immigration Statistics, there are approximately a total of 11.4 million unauthorized immigrants residing within the United States.1 Of these 11.4 million people, approximately 959,000 are unauthorized children who were brought to this country through no fault of their own by their parents or legal guardians between 2009 and 2013.2 This is almost one million children that are raised within the borders of the
United States, quickly assimilate to the nation’s culture, attend primary and secondary school, and grow up like any other child their age. Every year approximately 2.8 million students graduate from public and private high school. Some of these students go on to pursue higher education while others join the military or the work force. However, approximately 65,000 of these students face different futures. Due to a lack of proper documentation, these 65,000 unauthorized students often face challenges attending
1 See Jie Zong and Batalova, Jeanne, “Frequently Requested Statistics on Immigrants and Immigration in the United States,” http://www.migrationpolicy.org/article/frequently-requested- statistics-immigrants-and-immigration-united-states (Migration Policy Insitute, 2017). An estimated 11.4 million unauthorized immigrants resided in the United States as of January 2012 compared to 11.5 million in January 2011, according to the most recent estimates issued by the DHS Office of Immigration Statistics. These results suggest little to no change in the unauthorized immigrant population from 2011 to 2012. The Migration Policy Institute estimated 11 million unauthorized immigrants resided in the United States in 2014. More than half (54 percent) resided in four states: California (27 percent), Texas (13 percent), New York (8 percent), and Florida (6 percent). The vast majority (81 percent) of unauthorized immigrants resided in 171 counties with 10,000 or more unauthorized immigrants each, of which the top five—Los Angeles County, CA; Harris County, TX; Cook County, IL; Orange County, CA; and Queens County, NY—accounted for 21 percent of all unauthorized immigrants. 2 Approximately 5.1 million children under age 18 lived with an unauthorized immigrant parent during the 2009-13 period, representing 7 percent of the U.S. child population. About 79 percent (4.1 millions) of these children were U.S. citizens, another 19 percent (959,000) were themselves unauthorized, and 2 percent (113,000) were legally present, including Legal Permanent Residents (LPRs) and those with temporary visas. 1 college and engaging in other everyday activities.3 These challenges include but are not limited to facing out of state tuition rates and a lack of access to almost any kind of financial support.
Among these children exist many who have fought to pursue higher education despite the challenges they have faced. Dashi Tanaka is a 19-year-old sophomore who was born in Japan and was brought to the United States under a tourist visa. In 2004, his parents decided to over stay their B-2 tourist visa. For 11 years, Dashi Tanaka continued through primary and secondary school. He excelled in academics and extracurricular activities and obtained high scores in all his college examinations, which got him accepted to Harvard University. Tanaka currently lives in Boston, Massachusetts alone, as his parents have returned to their respective countries and are on a 10 year-wait period to reenter the U.S. Tanaka’s father returned to Japan and his mother to the Philippines.
They are both currently barred from reentering the U.S. for 10 years and are trying to work through the immigration system so they can live together in the same country.4
Indira Islas is an 18-year-old freshman who was also born in a foreign country,
Mexico. Islas’ parents decided to relocate their entire family and move to the State of
Georgia in 2004 to escape from gang violence and death threats. She was also only a 6- year-old, first-grader when her new life began in the U.S. In the fall 2016, Islas moved to the State of Delaware to attend Delaware State University where she is currently pursuing
3 Roberto G. Gonzales, “Young Lives on Hold: The College Dreams of Undocumented Students” (College Board Advocacy & Policy Center, 2009). 4 See Abby Jackson, “A Harvard Student Explains What it's like to Live in America Illegally Now that Trump is President,” Business Insider, http://www.businessinsider.com/undocumented- harvard-student-daca-deportation-2017-1 (January 26, 2017). 2 medicine and has a 4.0 GPA.5 Islas aspires to have a career as a doctor just as her parents did in Mexico before they had to escape gang violence and death threats. Her mom currently faces deportation as a result of an incident in 2012. Islas was riding home from track practice with her mother when another car sideswiped the family’s Ford Expedition.
When the police officer arrived and learned that her mother had no license (a state crime), she was detained at Gainesville’s Hall County jail and given a deportation order.
Both of these young adults, like many thousands more, have been able to attend college because of Deferred Action for Childhood Arrivals (DACA). DACA is an executive order announced by former President Barack Obama on June 15, 2012. It grants children who were brought to this country through no fault of their own and meet certain requirements a temporary deferred action from deportation. I will discuss this executive order further in Chapter 1: Historical Background - DACA. However, with the new Trump presidential administration, this executive order may be revoked and the futures of many of these students may change.6 Drawing on legal scholarship and works of political theory, I argue in this thesis that even if the new administration decided to repeal this program these individuals should not be removed from the U.S. If these minors can prove they are people of good moral character, exemplary individuals and positively contribute to our society, then they should not be inhibited from pursuing higher education but rather should be afforded the same advantages as the rest of the children they grew up among. While I recognize a country’s right to control its border and the right of fellow citizens to determine who, if anyone, they should invite into their
5 See Dale Russakoff, “The Only Way We Can Fight Back Is To Excel,” New York Times Magazine (January 29, 2017). 6 Early in his presidential campaign Trump publically stated his opposition to undocumented immigrants in a speech on August 31, 2016. See FN 21. 3 political communities, I draw on utilitarian, economic and fairness arguments to establish the value of granting DACA recipients benefits such as financial aid. I also help explain why granting these privileges to DACA recipients would beneficially affect citizens residing in the United States.
Some citizens believe that immigrants threaten the nation and call for immigration restrictions and border security. Other citizens see the importance of immigrants in our country’s history and argue that the blend of cultures and traditions makes the United
States unique. They claim that the hard work of immigrants, their talents, and their ideas have made the United States a great country. Nevertheless, regardless of where one’s beliefs may fall, it is evident that the United States faces two distinct problems we ought to distinguish. One asks for a solution to the complex U.S. immigration system, which is often difficult to work with and, some may argue, is outdated. This first issue considers possible reforms to the immigration system, border and national security and seeks an answer to what role the United States should play, if any, in resettling refugees at a time of global displacement. A large component of this first issue is whether or not we should have open borders. The second problem encompasses the question of what to do with an existing population of approximately 11.4 million people who are already present in the
United States with no citizenship or legal residency status. With regards to the first issue,
I do not argue that U.S. immigration policy should consist of open borders; rather I rely on and support Christopher Heath Wellman’s Freedom of Association argument, which finds a strong value in a country’s autonomy to select immigration policy and its right to exclude individuals from joining its society.7 But, I further argue, we have a problem
7 Christopher H, Wellman, “Immigration and Freedom of Association,” Ethics (Chicago: The University of Chicago Press, 2008): 109-141. 4 with an existing population of people already residing among us and removing them from the country is not the answer to the second issue. This would have a detrimental economic, social and political impact in our nation. As I lay out theoretical immigration principles and analyze DACA’s economic, social and political impact, I presume that while countries have the right to control immigration over their territorial borders we have the responsibility and a high interest in treating DACA eligible students as equal citizens with the same advantages and privileges as the rest of the children they grew up among.
5
CHAPTER I: HISTORICAL BACKGROUND
The United States has often been identified as a “Nation of Immigrants.” It’s immigration patterns begin as early as the Northeastern European settlement in the 16th century, continuing through the Industrial Revolution in the mid-19th century with the rise of cities and the need for railroad workers and carrying on into the most recent wave of immigration from Latin American countries.8 The United States has experienced different waves of immigration throughout multiple points in its history. Millions of people have left their home countries for different reasons but with the similar hope of a chance to start a new life. Many have arrived at our shores to embrace the principles of liberty, democracy and equality while escaping war and poverty and seeking the opportunity to own land or pursue the freedom to practice religion. Questions about the current and historical pace of immigration, the role of immigrants in the labor market, illegal immigration, humanitarian admission policies and enforcement practices have been popular topics of debate, especially with the new Trump administration.
A. LOCAL UNWELCOMING ATTEMPTS AT FINDING A SOLUTION TO IMMIGRATION
In all instances, immigrants have filled some of the United States’ demands, which include demands in the labor sector, while dramatically altering the population’s ethnic and religious composition and transforming the nation.9 But, the nation’s emerging multi-ethnic, demographic realities are not welcomed by everyone. In fact, the fear and intolerance to immigration-induced populations has become so tense that citizens have encouraged their own legislative bodies in recent years to enact local propositions and
8 Ueda, Reed, Postwar Immigrant America: A Social History (Bedford/St. Martin's, 1994), 9 Gilder Lehrman Institute, “History Times: A Nation of Immigrants” (New York: Gilder Lehrman Institute, 2017). 6 ordinances in response to these immigration changes. In California, for instance, the legislature passed Proposition 187, also known as the Save Our State (SOS) initiative, in
1994 and in 1998, Proposition 227, commonly referred to as the English Language in
Public Schools Statute. Proposition 187 established a state-run citizenship screening system and prohibited illegal aliens from using non-emergency health care, public education, and other services in the State of California, while Proposition 227 required public schools to teach Limited English Proficiency (LEP) students in special classes nearly exclusively in English. Proposition 227 was known as an anti-bilingualism approach because it eliminated all bilingual classes and required all public-school instruction to be conducted in English.10 In a like manner, in 2004 the State of Arizona passed Proposition 200, also known as the Arizona Taxpayer and Citizen Protection Act, and introduced the Senate Bill (SB) 1070, commonly known as the Support Our Law
Enforcement and Safe Neighborhoods Act, in 2010. Proposition 200 required that every person provide evidence of U.S. citizenship to register to vote and a photo identification at the polling place before receiving a ballot; asked for state and local governments to verify the identity of all applicants for state and local public benefits that are, which are not federally mandated; and required government employees to report U.S. immigration
10 See Michelle R. Alvarez and Butterfield, Tara L., “The Resurgence of Nativism in California? The Case of Proposition 187 and Illegal Immigration,” Social Science Quarterly (Austin, TX: University of Texas Press, 2000), 167-179. Proposition 187 was challenged in a legal suit and found unconstitutional by a federal district court. In 1999, Governor Gray Davis stopped the state appeals of this ruling. However, the support behind Proposition 187 reflected state residents' concerns about illegal immigration into the United States. Opponents believed the law was discriminatory against illegal immigrants of Hispanic or Asian origin, while supporters maintained that it was a necessary policy to alleviate economic concerns. They argued that the state could not afford to provide social services for every individual that entered the country illegally or overstayed their visas. 7 law “violations by applicants for public benefits.”11 On the other hand, Arizona SB 1070 was a broad and strict anti-illegal immigration initiative, which received a lot of attention at a national and international level. This state law increased the powers of local law enforcement that wished to enforce federal immigration laws. It charged aliens who were not carrying their required documents with a state misdemeanor and required law enforcement officers to determine an individual’s immigration status during a “lawful stop, detention or arrest.” Many argue that SB 1070 promoted racial profiling.12
Similarly, in 2011 Alabama introduced House Bill (HB) 56 or the Beason-Hammon
Alabama Taxpayer and Citizen Protection Act, which was an anti-illegal immigration bill similar in nature but tougher than Arizona SB 2010. Alabama HB 56 required and permitted state and local police officers to detain people based on the “suspicion” that they may be undocumented immigrants. This policy was problematic because it invited racial profiling and raised substantial concerns about inappropriate detentions.13 Other local responses to immigration include anti-immigration ordinances imposed at the city level. One of these examples is Resolution 07-894 implemented in 2005 in Manassas of
Prince William County in the State of Virginia. Resolution 07-894’s purpose was to
11 Proposition 200 allows state and local agencies to verify the identity and eligibility of applicants for non-federally mandated public benefits based on immigration status. Opponents of Proposition 200 claimed that it was an anti-immigrant initiative, which followed California's 1994 Proposition 187. Opponents also challenged the existence of voter fraud and argued that immigrants were important contributors to the state's economy. Some components of Proposition have been overturned by the Supreme Court of the United States as a result of a 2013 decision. However, the policy still stands in the books of Arizona. 12 Arizona v. United States, 567 U.S. ___ (2012). The day before the law was to take effect, a federal judge issued a preliminary injunction that blocked the law's most controversial provisions. In June 2012, the U.S. Supreme Court ruled on the case Arizona v. United States. The court upheld the provision requiring immigration status checks during law enforcement stops but stroke down three other provisions that violated the Supremacy Clause of the U.S. Constitution. 13 Haskell Slaughter Young & Rediker, LLC, “Alabama's Immigration Law: A Summary Update” (Alabama, 2011). 8 address illegal immigration and the impacts of it on the community.14 The resolution instructed the Chief of Police to enter into an agreement with Homeland Security, gave local enforcement the ability to check the immigration status of people if they believe they were in the country illegally, and mandated the denial of business licenses and certain county social services to unauthorized immigrants. According to the Metropolitan
Policy Program at Brookings, Prince William County’s total population more than doubled between 1980 and 2006. The county’s immigrant population grew more than 14 times its size in 1980, while its Hispanic population tripled in size between 2000 and
2006. Prince William quickly became one of the nation’s top counties for Latino growth.
In addition to this rapid population growth, the lack of infrastructure for immigrants, federal debates on immigration, heavy political pressure on local elections and large media attention created the right environment for a legislation piece like Resolution 07-
894 to pass without an adequate public hearing or enough investigation of the potential causes.15
States and small towns like these have not been the first to take measures against a perceived invasion of unauthorized immigrants. The growth of unauthorized immigration in these areas, and the failure of comprehensive immigration reform proposals at the federal level to address this issue, has created an incentive for policy responses at the state and local level like these. Often, this kind of immigration policy activism encourages local police forces to target members based on their immigration status or their physical and cultural features. The Supreme Court has found policies that
14 See Eric Byler and Park, Annabel, 9500 Liberty Documentary (2009). A month later after its enactment, Resolution 07-894 was repealed under pressure from the American Civil Liberties Union (ACLU) and local residents. 15 Aubrey Singer, et al., “Immigrants, Politics, and Local Response in Suburban Washington” (Washinton, D.C.: Metropolitan Policy Program at Brookings, February 2009). 9 promote racial profiling unconstitutional, as in Arizona v. United States, 567
U.S.___(2012), but much of the problem remains.16 Many of these anti-immigrant laws have barred undocumented immigrants and DACA recipients currently present in the
United States from accessing employment and other social benefits. This includes the estimated one million children who were brought to this country through no fault of their own, yet are constantly penalized by society for their parent’s actions as they get older and become adults. Some laws bar in-state tuition rates and financial aid eligibility for
DACA students. Other policies further prohibit DACA recipients from attending state institutions and universities, as I will discuss in Chapter 2.
B. DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) - A FEDERAL ATTEMPT AT FINDING A SOLUTION
On June 15, 2012, former President Barack Obama along with the Secretary of
Homeland Security Janet Napolitano announced Deferred Action for Childhood Arrivals
(DACA) through a memorandum that set forth how, in the exercise of their prosecutorial discretion, the DHS would “enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home.” DACA is an executive action which allows certain people who came to the
United States as children and meet several guidelines to receive a renewable two-year period of deferred action from deportation and eligibility for a work permit.17 DACA offers protection to millions of unauthorized immigrants from deportation but does not provide a permanent lawful status for these individuals. The administration reported that this executive order was created in response to a “broken immigration system” and what
16 Arizona v. United States, 567 U.S.___(2012). 17 Janet Napolitano, “DHS Memorandum to US CBP, USCIS, ICE, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Washington, D.C.: U.S. Department of Homeland Security, June 15, 2012). 10
Obama called a lack of action by the U.S. Congress to fix it. 18 This includes the failure of the U.S. Congress to pass the bipartisan legislation known as the “Development,
Relief, and Education of Alien Minors Act” or DREAM Act in 2010. The DREAM Act, unlike DACA, was a bill that granted a path to citizenship to many young women and men brought to this country as children if they had graduated from U.S. high school and attended college or joined the United States Armed Forces.19 According to USCIS, as we see in Table 1.1, over 800,000 people have been deferred from deportation under DACA.
Those eligible are under 31, born after the summer of 1981 and were brought to the U.S. before the age of 16; continuously resided in the country for at least five years prior to the announcement of DACA on June 15, 2012 and were physically present in the country the day of the announcement; are either in school or have graduated high school, obtained a
GDE or were honorably discharged from the military; and have not been convicted of a felony, significant misdemeanor, or more than three misdemeanors. Individuals must submit a copy of their criminal records or juvenile records, if applicable, to prove they pose no threat to national security or public safety to be eligible for this deferred status.
18 In November of 2014, Obama announced an expansion of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which intended to provide protection to an additional 5 million people. This includes the parents of U.S. Citizens and Lawful Permanent Residents. This series of executive actions is unprecedented primarily because of its potential ability to affect up to five million undocumented immigrants. Many believe this executive order is outside the scope of a president’s power and it is a matter that should be left up to the legislative branch. For the purpose of this thesis, I focus only on DACA and not DAPA. 19 The U.S. House of Representatives passed the DREAM Act (S. 3992, H.R. 6479) on December 8th, 2010. The Act would have provided legal residence to about 1.5 of the 11.3 million undocumented immigrants residing in the country at the time. However, this bill failed to pass the Senate as S. 279. Requirements for DREAMers would have been very similar to those of DACA. Eligible individuals must have: entered the United States before the age of 16; been present in the United States for at least five (5) consecutive years prior to enactment of the bill; graduated from a United States high school, or have obtained a GED, or have been accepted into an institution of higher education; been between the ages of 12 and 35 at the time of application; and must have good moral character. 11
Since the burden of proof lies on the applicant, it is also recommended that applicants provide a copy of any tickets, citations or court documents, such as indictments or judgements, along with any paper work that explains what happened in this event. 20
C. POLITICAL UNCERTAINTY FOR DACA RECIPIENTS
Approximately 959,000 out of the 11.4 million unauthorized individuals currently residing in the U.S. are children. These individuals were brought to this country by their parents or legal guardians between 2009 and 2013 through no choice or fault of their own. Out of these 959,000, approximately 800,000 have benefited from DACA. This includes a vast majority of the 65,000 estimated undocumented students that graduate annually from public and private U.S. high schools.21 Many of the DACA recipients like
Daishi Tanaka and Indira Islas currently reside in the U.S. and have been able to pursue higher education despite challenges they may face from their local and state governments in large part because of this executive order. However, as it is only an executive order and not a federal law, this temporary solution may be withdrawn under the Trump administration.
The political debate surrounding the 2016 presidential elections confirmed a strong support for stronger border security and crackdown on illegal immigration. Some of the popular arguments claim that unregulated and illegal immigration gives rise to social and economic problems. The belief is that illegal immigration threatens jobs, access to public resources and public safety, encourages and abets terrorism, and threatens American culture. Critics of DACA as a solution to the immigration question
20 Napolitano, “DHS Memorandum to US CBP, USCIS, ICE, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” 2. 21 Zong and Batalova,“Frequently Requested Statistics on Immigrants and Immigration in the United States,” 2017. 12 regarding the pool of undocumented individuals already present in the U.S. argue that this executive order only promotes further illegal immigration. With the election of
President Trump and the rise of some of these ideas, many have begun to fear the removal of DACA by the new president. Early on in his presidential campaign, President
Trump stated that “anyone who has entered the United States illegally is subject to deportation.”22 With respect to DACA itself, Trump often said he would “immediately revoke the program” without highlighting what would happen to the DREAMers currently benefiting from it. 23 If such removal should occur, people fear that their right to continue living and working in the United States will end, their application information will be shared and removal proceedings will begin against them. While current USCIS policy does not allow for the sharing of DACA information with U.S. Immigration and
Customs Enforcement (ICE) charged with immigration enforcement unless there is a threat to national security or a case dealing with fraud or a serious crime, the uncertainty behind the futures of many of these individuals is still daunting.
Every year, 65,000 students who have grown up in the United States graduate from high school and face limitations in fully participating in American society.
Although many of these individuals played no to little role in the decision to relocate and remain in the U.S. without legal status, they face social, financial, and legal barriers.
Nearly 30% of undocumented children live below the poverty line. Most live in constant
22 Trump Presidential campaign speech on August 31, 2016. 23 “DREAMers” is the term commonly used to address the population of individuals who were brought to this country through no fault of their own at an early age. It is a term that comes from the DREAM Act. As explained earlier, this federal legislation would have given these individuals legal status. 13 fear of deportation and involuntary family separation.24 While federal law guarantees all students a free public K-12 education, they face challenges while pursuing higher education as they confront high tuition rates and a lack of access to financial aid. Even if
DACA, the temporary relief they currently rely on, were to be revoked, DACA eligible individuals should not be removed from the U.S. but rather a more permanent solution should be found so they can get access to financial aid, in-state tuition rates and other advantages so they can continue to contribute to our society.
24 Catherine Eusebio and Mendoza, Fermín, “The Case for Undocumented Students in Higher Education” (Educators for Fair Consideration (E4FC), 2016), 2. 14
CHAPTER II: COLLEGE TUITION FEES AND FINANCIAL AID
DACA grants a work permit and a social security number to all recipients but it does not grant them many other rights, privileges or advantages. For example, DACA recipients cannot join the armed forces nor freely travel outside the country. This means it is almost impossible for them to study abroad or participate in similar educational activities, putting them at a disadvantage in comparison to fellow students. DACA recipients can only travel outside the U.S. under special circumstances. USCIS may grant a special permission to leave the country, which is referred to as advance parole, if the applicant demonstrates they are requesting special permission for education, employment, or urgent humanitarian reasons. USCIS will not grant advance parole for vacation or recreational purposes. While out of the country travel might appear to be an option, the process to apply for this advance parole is lengthy, risky, expensive and often not recommended.25 Furthermore, as DACA recipients are often from low-income families they face the fiscal burden of paying high tuition prices for college that are almost impossible to pay. In many states, some of these students are considered
“international students” and are not eligible for federal financial aid advantages, or in some cases any type of financial aid. As such, they often face out-of-state tuition costs
25 See University of California at Berkeley, “Undocument Student Program,” (Berekely: Univeristy of California, January 2017). DACA status is not enough by itself to allow an individual to leave the U.S. and be admitted back upon their return. If an individual is outside the U.S. when the program is terminated they might be refused entry even if they have advance parole. Urgent humanitarian refers to medical assistance, attending a family member’s funeral, visiting a sick relative, or some other urgent family-related matter. Educational purposes including participating in a study abroad program or doing academic research. Employment purposes encompasses, overseas assignments or client meetings, interviews, conferences, training or travel needed to pursue a job with a foreign employer in the United States. 15 and all because of their luck being born outside the U.S. borders to parents who chose to cross those borders in pursue of a better life when most were only children.26
A. DIFFERENCE BETWEEN IN-STATE AND OUT-OF STATE TUTION COSTS
Out-of-state tuition can often double the amount of in-state tuition and it varies based on the state university cost of attendance. The education system in the U.S. falls under a state’s jurisdiction rather than under the federal government. Each state funds and runs its own public institutions primarily from taxes from state residents. Consequently, these state residents can attend the state’s public universities and colleges at a lower cost in comparison to people who come from out of state. The difference in costs is referred to as “in-state tuition” for state residents and “out-of-state tuition” for individuals who seek education in a different state. Since each state oversees its own public universities and institutions, each college and university may vary in tuition rates. Table 1.2 offers information collected by the National Center for Education Statistics (NCES) that allows one to compare in-state and out-of-state tuition based on state averages.27
26 See FinAid, “In-State Tuition and State Residency Requirements,” The SmartStudent Guide to Financial Aid (FindAid, December 2015). State residents often qualify for lower in-state tuition rates and state grants. Most states have established residency requirements, which may be determined and established by the state board of higher education. In some cases, universities determine whether a student qualifies as a state resident. A dependent student must have at least one parent who is a state resident for at least one full year before the student matriculated in college. For independent students, either they or their spouse must have been a state resident for at least a year before the first day of classes. Some states require two years of residency and self- sufficiency for independent students. Some states may also have a minimum age requirement for independent students to qualify as in-state residents but may allow legally emancipated minors to qualify is they satisfy the durational requirements. Nebraska does not have a minimum period of residency for parents of dependent students, but uses the one-year standard for independent students. Some states require a full calendar year of residency and not just twelve months prior to the first day of classes. 27 See Appendix. 16
B. TUITION IN THE STATE OF FLORIDA
As part of the admission process, a student who applies to a Florida state university and declares Florida residency for tuition purposes must complete a residency form. The state university will review the information and any related documentation and verify the residency and eligibility of the individual for in-state tuition. Residency for tuition purposes is determined by the postsecondary institution or the university. Once it is determined, the decision cannot be appealed to a higher governmental agency.28 In
Table 1.3 one can observe that according to a study in the State of Florida the average in- state tuition costs for Florida residents is approximately 11.5 thousand dollars in comparison to an average out-of-state tuition cost of 27.7 thousand dollars for non-
Florida residents. 29 Analyzing this information further, the total annual cost of attending a Florida state university is approximately 26.2 thousand dollars for Florida residents in comparison to 43 thousand for non-Florida residents.30
The State of Florida did not always offer in-state tuition to DACA recipients. In
2014, after more than a decade of failed attempts since 2003, the Florida House of
Representatives and the Senate approved in-state tuition for DREAMers by a wide margin. This change occurred during a re-election year for Republican Governor Rick
Scott, who was fighting for the Hispanic vote against the Democratic opponent Charlie
Crist.31 As the vote came before the Florida Senate, Governor Rick Scott publically state
28 State University System of Florida Board of Governors, “Florida Residency Requirements Breakdown for Tuition Purposes,” Florida Board of Governors (2014). 29 See Appendix. 30 To attract more international students, some universities offer students in-state tuition and waive the extra out-of-state tuition fees but each university often has a limited of number of waivers they can hand out annually. 31 See Lauren Fox, “Florida Gov. Rick Scott Signs In-State Tuition Bill for ‘Dreamers’” (U.S. News and World Report, 2014). The Hispanic vote currently represents approximately14 percent 17 his support in a joint statement with former Republican Governors Jeb Bush and Bob
Martinez:
“Students who have spent their childhood here in Florida deserve to qualify for the same in-state tuition rate at universities their peers and classmates do. We want our students to stay here in Florida when they go to college and when they choose a career, and that means we must make college more affordable for all those students who call Florida home. The Florida Senate should take immediate action to move SB 1400 forward.”
Because of this bill, the State of Florida now offers in-state tuition to those students who attend a Florida high school for at least 3 years regardless of their U.S. immigration status. Eligible students must have graduated and applied to a higher education institution within 24 months of graduation.32
C. TUITION IN THE U.S. PERTAINING TO DACA ELIGIBLE STUDENTS AND UNDOCUMENTED ALIENS
While the State of Florida does offer instate tuition for DACA recipients as of
2014, not every state has taken the same direction. There are currently twenty states in the U.S that offer in-state tuition to unauthorized immigrant students, including the states of California and Texas, which have the highest population of undocumented immigrants.
Four of these 20 offer in-state tuition by state university systems, while 16 do so by legislative action.33 Georgia, Alabama and South Carolina, however, are the three states
of the Florida’s electorate, which was a vital pool of voters in the 2014 gubernatorial race. The House Bill 851 passed the Florida House of Representatives with an 81-33 vote in March and the Senate 1400 with a 26-13 vote in May. In addition to providing to students who entered the U.S. illegally in-state tuition benefits at colleges and universities, the bill also lowered tuition for students across the board. 32 A GED is not sufficient to be eligible to receive in-state tuition under this 2014 Florida Bill. 33 See National Conference of State Legislatures, “Tuition Benefits for Immigrants,” In-state Tuition and Unathorized Immigrant Students (July, 21 2015). The sixteen state legislatures that enacted laws to allow in-state tuition benefits for certain unauthorized immigrant students include the states of California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Texas, Utah and Washington. Traditionally laws like these require individuals to attend and graduate from a state high school, be accepted at a state college or university, and promise to apply for legal status as soon as 18 that bar in-state tuition for undocumented students. The State of Georgia further bars
DACA recipients from in-state tuition fees and in some state institutions from enrolling in college as well, although these individuals have federally been granted lawful presence and the ability to obtain work permits and licenses. The remaining 27 states, as seen in
Figure 1.4, do not have any known or solidified policy on tuition rates for undocumented students. There is no established law granting or prohibiting in-state tuition or college enrollment for DACA recipients in these states. Some of this information is still being collected.
According to the 2008 Georgia SB 492, a student must be “legally in the state, and the Board of Regents (BOR) determines their in-state classification.”34 The BOR policy 4.1.6 bans DACA students from attending public colleges; this includes the
University of Georgia, Georgia Tech and Georgia College and State University.35 In response to the strong BOR policy and its impact on DACA recipients, a few lawsuits have followed. In January 2017, Fulton County Superior Court Chief Judge Gail Tusan issued a mandamus relief, which requires the BOR to “perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA recipients and to grant them in-state tuition status.” Despite this court mandate, the BOR has
eligible. On the other hand, the four state university systems that established policies to offer in- state tuition rates to unauthorized immigrant students include the University of Hawaii Board of Regents, University of Michigan Board of Regents, Oklahoma State Regents for Higher Education and Rhode Island’s Board of Governors for Higher Education. In 2014, Tennessee and Florida enacted legislation that extends in-state tuition to U.S. citizen students who are dependents of unauthorized immigrants. In 2015, Connecticut reduced the number of high school years that an unauthorized student is required to attend in the state from four to two in order to receive in-state tuition. 34 University Systems of Georgia, “Board of Regents Policy Manual University Systems of Georgia,” Official Policies of the University System of Georgia (Last modified January 23, 2015). 35 Before November 2016, the three-college ban was once a five-college ban, which included Georgia State University and Augusta University. 19 released a statement announcing that it plans to appeal the court’s decision and continue to follow its own in-state classification per Georgia SB 492. Aside from these law suits,
Georgia’s policy has also given rise to Freedom University. According to their website:
“Freedom University opened its doors in 2011 following the passage of Georgia Board of Regents Policy 4.1.6, which bans undocumented youth from attending Georgia's top public universities, and Policy 4.3.4, which bans undocumented students from in-state tuition. While more than 22 states allow undocumented students to attend public universities or qualify for in-state tuition, Georgia is the only state in the country to ban students both from select universities and from in- state tuition. These policies effectively target and exclude undocumented students and usher in a modern era of educational segregation in the U.S. South.” 36
This Atlanta-based group intends to make up for the policy’s impact on DACA recipients and helps provides free college-level education and resources for DACA students unable to attend college.37 There are currently over 23,400 DACA recipients in the State of Georgia affected by the state’s ban on in-state tuition and college enrollment.
Although many DACA recipients grew up and attended school in the same state’s primary and secondary systems, as required by federal law, many, like those in the State of Georgia, continue to face undesirable obstacles that make it impossible to continue to pursue higher education.
D. FINANCIAL AID
Approximately 90 percent of full-first time students receive some level or form of financial aid throughout their undergraduate experience at 4-year, degree seeking
36 Direct description from Freedom University Website’s Mission: http://www.freedomuniversitygeorgia.com/mission.html 37 See Charlotte Norsworthy, ”DACA Students Continue Fight for In-State Tuition” (The Red & Black, January 13, 2017). In addition to their purpose of providing college level education to DACA recipients, Freedom University (FU) has organized several sit-ins protesting the state’s previous ban on in-state tuition for DACA students at the University of Georgia, Georgia Tech and Georgia College and State University in 2015 and 2016. Before November 2016, the three- college ban was once a five-college ban, which included Georgia State University and Augusta University. 20 universities as we observe in Figure 1.1 and Figure 1.2.38 The major forms of federal financial aid for U.S. degree seeking college students are grants and loans. One of the largest federal grant programs available to undergraduate students is the Pell Grant.39 In order to qualify for this grant, a student must be a U.S. citizen or legal resident and must demonstrate a level of financial need, which is determined by the Free Application for
Federal Student Aid (FAFSA).40 A study conducted by NCES demonstrates that the percentage of first-time-in-college, full-time degree-seeking undergraduate students at 4- year degree-granting postsecondary institutions receiving any financial aid, which was 85 percent, was higher in 2013-2014 fiscal year in comparison to the 82 percent in the 2008-
2009 fiscal year. The percentages of students receiving aid at all types of 4-year institutions have also increased. In the 2013-2014 academic year, the percentages of students receiving aid at 4-year public institutions was 83 percent, at 4-year private nonprofit institutions was 89 percent, and 4-year private for-profit institutions was 89 percent; but, in the 2008-2009 fiscal year, the percentages of students receiving aid was
79 percent at public institutions, 87 percent at private nonprofit institutions, and 85 percent at private for-profit institutions.41 Based on these statistics, a large majority of
38 U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System (IPEDS), “Education's Institute of Education Sciences (IES),” Winter 2015–16, Student Financial Aid component (March 2015). 39 Since the 1973–74 academic year, the Federal Pell Grant Program has aided undergraduate students who demonstrated financial need. Its primary goal is to increase low-income students’ access to postsecondary education. 40 Through FAFSA each applicant’s Expected Family Contribution (EFC) is calculated, which considers a family’s taxed and untaxed income, assets, and benefits as well as other factors such as family size and the number of family members attending college during the same academic year. If a student’s EFC is lower than the student’s total price of attendance (i.e., tuition and fees, books and supplies, and living expenses), the student may be eligible for need-based federal financial aid 41 See U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System (IPEDS). The National Center for Education Statistics (NCES) is the part of the United States Department of Education's Institute of Education Sciences 21 students in undergraduate and graduate school depend on external financial aid to continue to pursue their education—unauthorized immigrant students and DACA recipients are not an exception.
Financial aid is often unavailable for unauthorized students. There is no clarity regarding the eligibility of undocumented students for in-state tuition rates or benefits between federal and state law. Section 505 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (Title 8, Chapter 14, Sec. 1623(a)) states:
"An alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident."
However, subsection 8 USC 1621(d) of this 1996 Act gives states the leeway to provide undocumented students with state or local public benefits if the state law permitting it is enacted after August 22, 1996.
While DACA recipients can use their Social Security Number (SSN) to complete the FAFSA form, like an undocumented immigrant student they are also not eligible for federal financial aid.42 Even if a DACA recipient demonstrates financial need, they do not receive any of these federal grants because of the failure to meet the federal residency or citizenship requirement. Without this fiscal aid, some DACA recipients attempt to find funding through private or state institutions. Some, such as Dashi Tanaka and Indira Islas, have better luck than others.43 Federal loans, on the other hand, have fewer residency
(IES) that collects, analyzes, and publishes statistics on education and public school district finance information in the United States. 42 Often, colleges use information collected from FASFA to make their Financial Aid decisions- and completing the FAFSA form allows DACA students to receive a Student Aid Report (SAR). 43 See Abby A. Jackson, “A Harvard Student Explains What it's like to Live in America Illegally Now that Trump is President,” January 26, 2017. Dashi Tanaka relies heavily on the full paid 22 requirements and are often available to all students but are still hard to obtain and pay back. In addition to federal financial aid, DACA recipients can find hope in seeking grants through state and local institutions or other private sources. Depending on the state in which a student resides, they may be eligible for state or private financial aid.
However, like state tuition costs, financial aid is left to the discretion of states and their public institutions. In a like matter to tuition rates, most states and colleges have the discretion to determine whether a student is eligible for fiscal aid or not.
While some states, such as the State of Florida, allow students who have attended and graduated from a state high school and meet additional academic and extracurricular requirements to receive state aid, not every state does the same.44 In 2015, Utah granted an exemption to its previous requirement of verifying citizenship and legal presence for privately funded scholarships administered by colleges or universities— allowing public universities to use private sources to create scholarships and grants for unauthorized immigrant students. On the other hand, Missouri barred in-state tuition and scholarships to students with unlawful immigration status, while the states of California, New Mexico,
Minnesota, Texas and Washington continue to offer state financial assistance to
education he receives at Harvard University. Indira Islas chose Delaware State University, as it is one of the two universities, that offer a full-4 year- ride scholarships for undocumented individuals through dreamus.org. The other university is East Connecticut University. 44 See Florida Department of Education, “Florida Bright Futures Scholarship Program” Florida Student Financial Aid (Office of Student Financial Assistance, 2016). The State of Florida offers the Florida Bright Futures Scholarship program. As the Florida Student Scholarship and Grants website states, the minimum SAT scores for the program are set in Florida Law. There are two levels of aid within this program. The Florida Academic Scholars Award, which requires an SAT of 1290, and the Florida Medallion Scholars Award, which requires an SAT score of 1170. In addition to achieving the required minimum score on either the ACT or SAT college entrance exam, a student must also complete the required high school coursework, achieve the required minimum high school grade point average (GPA) and complete the required number of service hours. Since there is no citizenship requirement and Florida Bright Future is left to the discretion of the state and its public institutions, DACA and undocumented aliens may be eligible for Florida Bright Futures. 23 undocumented students.45 With this in mind, DACA recipients often do not only face the burden of paying out-state tuition costs in some of the states they have lived most of their life, they also face the fiscal burden of receiving no federal aid at all, and in some cases state and private aid, which if it was not for their immigration status they would otherwise qualify for.
While over 90 percent of undergraduate students rely on financial aid in some form, DACA recipients are not afforded the same access to this financial support.
Although they attended the same schools in primary and secondary school as their peers and pay taxes just like everyone else, today’s immigration laws do not grant DACA recipients eligibility for federal financial support. DACA recipients are often on their own. They may be fully responsible for the financial cost that comes along with pursuing higher education. As I will argue in Chapters 5, there is no strong reason why DACA recipients should be denied these advantages. On the other hand, if these minors can prove they are people of good moral character, exemplary individuals and positively contribute to our society, then they should not be inhibited from pursuing higher education but rather should be afforded the same advantages as the rest of the children they grew up among. If granted more tools and resource like federal financial aid, as I will discuss in Chapter 4, undocumented immigrants, or in this case DACA recipients, would be able to produce and earn significantly more than they do when they are on the economic sidelines.46
45 National Conference of State Legislatures, “Tuition Benefits for Immigrants,” July, 21 2015. 46 Wong, Tom K, United We Dream, National Immigration Law Center, Center for American Progress, “Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey” Survey of DACA Recipients 2015, (Center for American Progress, 2016). 24
CHAPTER III: IMMIGRATION AND FREEDOM OF ASSOCIATION
One may believe I am arguing for open borders but I would like to clarify that I am not for open borders. I see value in respecting a nation’s autonomy to select immigration policy and to control immigration over its territorial borders. However, drawing support from Christopher Wellman’s argument for Freedom of Association, I draw a line for those already present within the borders of the U.S.— in this case, DACA recipients. I do not believe everyone should be allowed to enter the U.S. but argue that those already residing within the territorial borders of the country should have the same rights. In Immigration and Freedom of Association, Wellman argues that countries have the right to reject or exclude potential association of other immigrants, even refugees seeking asylum to escape corrupt political regimes. He argues that fellow citizens have the right to determine who, if anyone, should be invited into their political communities and be granted membership rights. From his argument and support of other relative relational equality theorists, it can be said that those individuals who are part of the community and are existing residents must be treated as equals.47 While Wellman defends a nation’s right to deny entry to anyone against popular egalitarian and libertarian cases for open borders, I believe he would support financial aid access and other advantages for DACA recipients who currently live in the U.S.
A. IMPORTANCE OF FREEDOM OF ASSOCIATION AND MEMBERSHIP RIGHTS IN ONE’S STATE
Freedom of association for Wellman is more than just having the right to engage with someone or a group of people, it is also the right not to associate and even in some cases the right to disassociate. Wellman begins by saying that just as an individual has the
47 Wellman, “Immigration and Freedom of Association,” 141. 25 right to determine who he or she should marry, a group of citizens have the right to determine who they would like to invite into their political community.48 He further explains that just as an individual is entitled to remain single, a nation has the freedom to exclude all foreigners from its political community. If nations did not have this right, they would not enjoy the freedom to either accept or reject the terms of regional associations such as the European Union (EU) or North American Fair Trade Agreement (NAFTA) and we could not explain why it is wrong for one country to forcibly annex another country. In Wellman’s view individuals and nations have the right to autonomy and self- determination, which extends to the right of freedom association.49
To better understand the value behind having clear control over membership rights in one’s state, Wellman uses the membership rights to a golf club as an example.
People in a golf club care about membership rights because they care about their say on the organization of the club, the total number of members that should be allowed, the cost of the membership, etc. The reasons why members may want to limit how many people can join is because if there are too many people this may affect the amount of tee times each member may have, the wear and tear of the course and the time it could take to play a round.50 Just as members of a golf club can have good reason to not want an “open membership” policy, so too could members of a country not want an “open borders” immigration policy.
48 Ibid., 110. 49 Ibid., 112. 50 Ibid., 114. 26
B. MEMBERSHIP RIGHTS WITH RESPECT TO DACA
People rightly care about their nations and as a result they are invested in the policies that affect their communities. Hence, since a nation’s immigration policy affects who will control and impact the country’s future, this is always important to keep in mind. One may argue that granting financial aid, voting rights and other advantages to all
800,000 members who are already DACA recipients would change the political atmosphere of the country. However, as Wellman argues, these members are already part of the society and the country, and thus are deserving of these advantages and the opportunity to be treated equal. In his text, Wellman cites Jean Hampton and her interpretation of Aristotle in Political Philosophy:
“We want, he says, a society in which people treat each other as equals (no one should be allowed to be the master of another or the slave of another) and in which these equals treat each other as partners—or ‘civic friends.’ The way to get this is to pursue not exact equality of resources but sufficient equality to ensure that no one is able to use his greater wealth to gain political advantage over others in a way that damages their partnership.”51
According to Wellman, Hampton emphasizes Aristotle’s concern for equality because he sees it as an integral part to maintain desired relationships among fellow community members. Equality among community members is important so “compatriots” can interact as political equals, as inequality permits subordinates to be dominated in oppressive relationships. To expand on this idea of inequality, Wellman imagines two types of inequality. The first concerns two societies, A and B, which in his example are not aware of each other’s existence. Everyone is well off in society A, while everyone is doing equally poor in society B. The second type of inequality Wellman discusses is a mixture of society A and B— society C, in this case, consists of both disparities.
51 Ibid., 121. 27
Wellman is more concerned with the inequality among the Cs because it is a single political community in which everyone is aware of the disparity and the inequality affects the relationships between its members. While these examples seem to revolve predominately around goods or wealth, they too are “fundamentally concerned” with the relationships between the members in the society. This concern for relationship inequalities allows me to believe that the principle would extend to inequalities caused by immigration policies. I argue that the relationship disparities in society C are similar in nature to the disparities between citizens and non-citizens currently present in the U.S., which include DACA recipients. These individuals are not foreigner walking into our shores, they are individuals that have attended primary and secondary school in the U.S.
DACA recipients are people who have lived in the U.S. for years, who are part of the culture and the atmosphere, and who ought to be treated equal like the rest of the members in society.
To further support this point, Wellman discusses the position Michael Walzer takes in Spheres of Justice regarding Germany and their “guest workers” from countries like Turkey, which he explicitly states he is in favor of. Walzer argues that while
“Germans are not morally obligated to admit these workers, they nonetheless may not bring workers in as political subordinates.”52 Wellman admits that at first this conditional right to equality may seem strange as prospective immigrants do not have a right to enter the country. Reflecting upon the earlier arguments of relative relational inequality theories, Walzer’s conditional right to equality for those residing within the territorial borders of a country and Wellman’s support for it make sense.53 Wellman argues that
52 Ibid., 121. 53 Ibid., 125-26. 28 there is nothing inconsistent in objecting to the inequality that may exist between people of different nationalities subjected to the same political community within Germany even if their stay is temporary. While I am not for open borders and agree that it is a nation’s right to control immigration over its territorial borders and select immigration policy, I believe, with the support of Wellman’s argument, that individuals already residing in the
U.S., like DACA recipients, should be treated equal as their fellow compatriots and neighbors. DACA recipients should be allowed to attend college, receive financial aid, pay in-state tuition, and take advantage of other opportunities.
C. THE PUTNEY DEBATES AND THE FEAR OF VOTING RIGHTS
If all 800,000 DACA recipients were to be given all advantages of current U.S. citizens, there is a fear that this would have a significant impact on the political atmosphere of the U.S. In fact, some people argue that the Republican Party has struggled to respond to Obamas’ executive order without alienating Hispanic voters, but regardless seem not to want to afford citizen rights to these 800,000 individuals for the fear of losing political control if they are, for example, allowed to vote in elections. To better understand this fear of voting rights and change in the political community, it is important to analyze the Putney Debates. The Putney Debates were a series of discussions between members of the New Model Army and the Levellers, who were mainly business men and skilled craftsmen, that arose as they came together with the defeated King Charles I to determine the makeup of a new British constitution.54 In their discussions the Independents and the Levellers each supported different views on who should have voting rights within this new constitution. The Levellers believed everyone
54 Michael Mendle, The Putney Debates of 1647: The Army, the Levellers and the English State (Cambridge: Cambridge University Press, 2001). 29 in the country should be entitled to vote, while the Independents proposed that only those who own land should obtain suffrage rights. The Independents feared that if everyone where to be given the right to vote, then those without land would become the majority and would take away the property of those who owned land. They argue that restraints should be put in place for those that do not have a local and permanent interest in the kingdom. To have this interest, a man must have a “fixed” place. The Independents argued that if a man rents land for a year, for two years, or twenty years, that good man may pay the rent that his land is worth but he cannot have much interest in the kingdom.
The Independents desired that this idea be one of the most fundamental principles behind the constitution—no person without a local and permanent interest should have an equal say in the election:
“If you go beyond this law, if you admit any man that hath a breath and being, I did show you how this will destroy property. It may come to destroy property thus. You may have such men chosen, or at least the major part of them, [as have no local and permanent interest]. Why may not those men vote against all property? [Again] you may admit strangers by this rule, if you admit them once to inhabit, and those that have interest in the land may be voted out of their land. It may destroy property that way. But here is the rule that you go by. You infer this to be the right of the people, of every inhabitant, because man hath such a right in nature, though it be not of necessity for the preserving of his being; [and] therefore you are to overthrow the most fundamental constitution for this.”55
Like in the Putney Debates, there are people who believe that if the thousands of DACA recipients are given citizenship rights, they would drastically change the political community. Some believe and fear that these immigrants would quickly become the majority and vote in ways that would negatively impact their lives, as in Wellman’s golf club membership rights example.
55 Woodhouse, A. S. P., ed. Puritanism and Liberty, Being the Army Debates (1647--9) from the Clarke Manuscripts with Supplementary Documents. 2d ed. (London: J. M. Dent & Sons Ltd., 1951), Volume 1, 505.
30
However, there is a difference between being a member of the nation and having the nation’s full citizenship rights. Take for instance the difference between U.S. citizenship rights and legal resident rights. If we were to grant DACA eligible individuals membership rights, which would include financial aid, it does not necessarily mean they ought to have all the U.S. citizenship rights. They can still follow the same protocol everyone else follows to obtain full citizenship when they are prepared to apply. On the other hand, even if DACA recipients were granted full citizenship rights, which included voting rights, this should not be a concern to U.S. citizens. There are many constitutional and legal protections in the U.S. system that protects minorities against the rule of the majority.
The fear of the majority stems from the idea that the majority in a direct democracy can have the potential to place its own interests above everyone else’s and perhaps at the expense of those in the minority. If the majority disliked a particular ethnic, religious, political or racial group, for example, they may come together to oppress this group through the democratic process. An example of this can be observed in
Israel. If Palestinians had full-voting rights in Israel and were the majority, they might want to vote to undermine things that are important to Israelis. The fear of this occurring explains why Israelis might not want open borders or to grant citizenship status to
Palestinians. On a similar note, if undocumented aliens currently living in the U.S., or in this case the 800,000 DACA recipients, were given full citizenship rights, there might be a similar fear. However, in comparison to Israel in a pluralist country like U.S. with protected constitutional rights to property, free exercise of religion, free speech, free
31 association, due process of law, and equal protection of the law, this might not matter so much.
In a note to Thomas Jefferson at the Constitutional Convention, Alexander
Hamilton expressed similar fears regarding the power of the majority. The majority in a direct democracy could elect a “ruler” whose leadership could harm those in the minority rather than consider the interests of all its citizens. In the drafting of the U.S. constitution our founding fathers took this into account and enacted various protections. One of these protections is the Electoral College used in the U.S. presidential election system. This mechanism was created as a safety measure to allow electors to elect the most qualified person to the presidency and to prevent the use of democracy to overthrow democracy for an oppressive government system. Alexander Hamilton wrote in The Federalist Papers
No. 68:
“It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.”56
The founding fathers created the electoral college to construct a buffer between the majority in the population and the selection of a President and to give smaller states a stronger say in the election. This sentiment and fear against the “tyranny of the majority”
56 Alexander Hamilton, “Federalist Papers No. 68,” The Federalist Papers (New Haven, CT: New American Library, March 14, 1788). 32 was echoed by other founding fathers. James Madison, for example, wrote in The
Federalist Paper No. 51:
"It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."57
Madison and others believed that to safeguard against the tyranny of the majority a system had to be created where a “number of sects and divergences of interests and opinions” divided people in ways that would make it a challenge to form coalitions for a stable majority. Hence, aside from the electoral college, other protections to counter this kind of fear in the U.S. system are the limits of power of the legislative body with the requirement of a bicameral congress, the separation of power among the legislative, judicial and executive branches and in the introduction of a Bill of Rights. These protections embedded in our U.S. system would prohibit current undocumented individuals and DACA recipients, if they were to become the majority, to elect a president who would act against the interest of everyone else.
The fear of non-U.S. citizens becoming the majority and using democracy to their advantage assumes they currently do not have a say in the political system. Whether they have voting rights or not, U.S. residents and DACA eligible recipients can lobby their state representatives and advocate for change on certain matters which may also impact
U.S. citizens. Furthermore, most Americans today are unaware that the voting of non- citizens was a widespread practice in the first 150 years of the U.S. From 1776 until
1926, there were approximately 22 states and federal territories that allowed non-citizens to vote in local, state and, sometimes, even federal elections. The U.S. Constitution gives
57 James Madison, “Federalist Papers No. 51,” The Federalist Papers (New Haven, CT: New American Library, February 8, 1788). 33 states and municipalities the right to decide who is eligible to vote. Currently, there are twelve states that have statutes that permit nonresidents, such as “second-home owners or business owners,” to vote in local, municipal, and special district elections. There are also two states, Illinois and Maryland, who have passed statutes that permit local jurisdictions to decide if non-citizens will be permitted to vote in local elections. The most cited example in Maryland is Takoma Park, which has allowed non-citizen voting in city elections since 1993 after the passing of a city-referendum in 1992.58 In 2015 the District of Columbia in Bill 28 and Connecticut in House Bill 5170 also proposed to allow non- citizens to vote in local elections.59
Local governments and proponents behind non-citizen voting at local elections argue that if one lives in a community one might be interested in membership and voting rights that affect property taxes rates or how the garbage is being picked up. It is the argument of these local governments that non-citizen voting matters because city services and local taxes affect both citizen and non-citizen residents alike. On a similar note, the
Supreme Court has also determined that a state cannot ignore the residence of non- citizens in a political community. In its 2016 Evenwel v. Abbott decision, the court prohibiting the practice of ignoring non-citizens when drawing state and municipal voting district boundary lines. The court ruled that drawing voting districts based on U.S. citizens or eligible voters rather than population could upset the political balance and a
58 See National Conference of State Legislatures, “Voting By Non-Resident and Non-Citizens,” http://www.ncsl.org/research/elections-and-campaigns/non-resident-and-non-citizen-voting.aspx (February 27, 2015). The city of Chicago also allows non-citizens to vote in local school council (LSC) elections. Requirements are as follows: you must be an adult; parent/guardian of a student enrolled at the school; and demonstrate that you live within the attendance area boundaries of the school. 59 Ron Hayduk and Wucker, Michele, “Immigrants Voting Rights Receive More Attention,” Migration Information Source, http://www.migrationpolicy.org/article/immigrant-voting-rights- receive-more-attention/ (Migration Policy Insitute, November 1, 2004). 34
“well-functioning approach to districting that all 50 states and countless local jurisdictions have followed for decades, even centuries.”60
People have the right to care about their nations and have an interest in the policies that affect their communities. Since a nation’s immigration policy affects who will control and impact the country’s future, it is no surprise why a U.S. citizen would be worry to grant full-membership rights to others. However, these should not be concerns as the U.S. system and Constitution in our pluralistic democracy offer protections against the majority. Furthermore, while there are valid reasons why an individual may not want non-U.S. citizens to vote in federal elections, if we were to grant DACA eligible individuals membership rights, like financial aid, it does not necessarily mean they ought to have all the rights of U.S. citizens. I am not arguing that they should all be given voting rights right away, but rather that these DACA recipients ought to follow the same protocol everyone else follows to obtain full citizenship when they are prepared to apply.
Our immigration system needs some upgrading, and while open borders might not be the ideal solution we ought to try to find a solution that recognizes 11.4 million immigrants are currently living in our society. As Wellman claims, states have the right to reject membership to anyone wishing to trespass the nation’s borders. However, those already present must be treated as equals, and DACA recipients are no exception.61
60 Evenwel v. Abbott, 578 US __ (2016) 61 Wellman, “Immigration and Freedom of Association,” 141. 35
CHAPTER IV: THE UTILITARIAN & ECONOMICS
Some Americans wrongly believe that immigration hurts the U.S. economy.
There is consensus among many leading economists that immigration gives economies a net boost. In fact, a report from the Migration Policy Institute, an independent, nonpartisan, nonprofit think tank that focuses on analyzing the movement of people around the world, indicates that “immigration unambiguously improves employment, productivity, and income,” especially when an economy is growing.62 Contrary to popular belief, immigrants do not reduce native employment rates. As Nowrasteh finds, aside from it being an economic burden to remove all DACA recipients and 11.4 million undocumented individuals from the U.S., there are many economic benefits in keeping
DACA eligible individuals in the country and in providing them with fiscal aid to continue to pursue higher education or legally join the workforce. Keeping them in the country does not mean that when immigrants get jobs, there will be an increase in unemployment of citizens, as I will further discuss in section B of this chapter. Hence, if it is too costly to remove these individuals and not beneficial for our society to continue to leave them in the shadows, then we ought to provide them the correct tools for productivity and success.63 We ought to take advantage of the potential contribution they can offer to our economy, even if this includes making them legal members of our society and granting them advantages and privileges, such as obtaining a license or state ID and giving them access to financial aid if they meet certain requirements.
62 Zong and Batalova, “Frequently Requested Statistics on Immigrants and Immigration in the United States,” 2017. 63 Alex Nowrasteh, “Common Arguments Against Immigration” (Washington, D.C.: The Cato Institute, August 8, 2016). 36
A. COMMON ECONOMIC ARGUMENTS AGAINST IMMIGRATION
One may make the argument that immigrants like DACA recipients are hurting or even destroying the U.S. economy. Some of the popular arguments on this perspective are that immigrants are:
1. Stealing our jobs, increasing economic inequality, lowering wages, and
hurting the poor;
2. Not paying taxes and only abusing the welfare system;
3. And are creating a net fix cost to the U.S.64
If this is the case, I would agree that there is no economic reason why one would advocate for their stay in the U.S. However, it is important to note that since the implementation of DACA in 2012, approximately 800,000 young people have filed for and received temporary relief from deportation and renewable employment authorization, as mentioned in Chapter 1: Historical Background. According to several studies, these
800,000 DACA recipients have made significant contributions to the economy in the short 5 years since the launch of the program in 2012.65
B. ECONOMIC BENEFITS OF IMMIGRANTION RESPONSE: AN ECONOMIC SPOTLIGHT ON DACA
DACA has helped alleviate some of the challenges immigrants faced daily due to a lack of proper documents and permission to stay in the U.S. In the process, DACA has
64 See Nowrasteh, “Common Arguments Against Immigration,” August 8, 2016. The Cato Institute is a public policy research organization (a think tank), dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues. 65 See Wong, et al, Survey of DACA Recipients 2015, 2016. Studies refers to those of Tom K. Wong of the University of California, San Diego; the National Immigration Law Center, or NILC; the Center for American Progress, or CAP; and United We Dream. The studies were conducted between 2015 and 2016 to analyze the economic and educational outcomes of DACA recipients. The results of these studies are furthered discussed later in this chapter. 37 also created a significant economic gain in terms of growth, earnings, tax revenues, and jobs. It is also argued that that these DACA recipients would have an even greater impact if granted legal status and citizenship.66 The data, as observed in Figure 1.3, demonstrates that DACA recipients are making significant contributions to the economy by buying cars and their first homes. In other words, DACA recipients are creating more revenue for states and localities through sales and property taxes, as well as registration and title fees. Some recipients are further creating more jobs with the start of their own businesses.
It is the fear of some Americans that by allowing DACA recipients to stay in the country, and perhaps granting them a path to citizenship, we are welcoming thousands to the U.S. even though millions of Americans are already jobless. However, most economists and other experts have found little to no support to find validity in this claim.
The stay of these recipients does not mean that there will be an increase in unemployment for U.S. citizens. On the other hand, as the Migration Policy Institute argues, Immigrant workers "create almost as many" jobs as they occupy, "and maybe more." Immigrants contribute to the demand for goods and services that they consume— increasing the demand for labor.67 Traditionally most immigrants are not competitive in many types of jobs, and thus are not direct substitutes for native-workers or U.S. citizens. Local employers rely on low-skilled labor immigrant inflows. Similarly to other sectors, the addition of the low-skilled immigrants expands the size of the overall economy and creates higher-wage openings, such as managers, craftsmen or accountants. Although new immigrant workers add to the labor supply, the net result is a greater financial
66 Ibid. 67 Zong and Batalova, “Frequently Requested Statistics on Immigrants and Immigration in the United States,” 2017. 38 reward and relatively more opportunities for U.S. citizens, and DACA recipients are no different. While DACA recipients are obtaining better and perhaps more skilled jobs, there is still no significant negative impact on U.S. citizens, as the same principle follows.
DACA recipients add to the demand for goods and services that they consume as well.
Figure 1.3 shows that approximately 21 percent of recipients purchased their first car and
12 percent purchased their first home in 2015 after receiving DACA. In 2016, the percentage of those who purchased their first car increased to 54 percent. These large purchases are vital for the state’s revenue, as states often collect 3 to 6 percent in sales tax.68 DACA’s economic impact stems from the creation of jobs and the infusion of new spending in local economies. Hence, these individuals are not stealing jobs, increasing economic inequality, lowering wages, or hurting the poor as common misconceptions may argue but are actually doing quite the opposite.
Another popular belief is that immigrants are not paying taxes but rather only abusing the welfare system, however, the Pew Research Center demographic and trend studies have affirmed otherwise. Each year undocumented immigrants pay approximately
$12 billion dollars in taxes: they help support approximately 10% of the social security fund, while few, if any, are eligible for any of the benefits. As the studies show and
Figure 1.3 demonstrates, approximately 95% of DACA recipients are working, paying their taxes, contributing to social security and Medicare, and creating more resources.69 If
68 See Tom K. Wong, et al., “New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes” (Center For American Progress, October 18, 2016). In addition to these collected taxes in purchases, there are registration and title fees. DACA also increases the safety benefits of having more licensed and insured drivers on the roads. With respect to first home purchases, homes are purchased at an average cost of $167,596. DACA’s economic impact is a result of the creation of jobs and the infusion of new spending in local economies. 69 See Nowrasteh, “Common Arguments Against Immigration,” August 8, 2016. Immigrants make a large net contribution to Medicare and Social Security because of their ages, ineligibility 39 the DACA program were to be removed, the loss to GDP over a decade is estimated to be approximately over $433.4 billion.70
In addition to the economic benefit behind the creation of resources, there is a fiscal impact inversely related to education. When it comes to primary and secondary education there is a net cost of $31,000 per student if this education is not received. On the other hand, there is a net gain of $105,00 if this education is obtained. When it comes to higher education, the pattern is very similar. According to an analysis of census and college cost data by the Pew Research Center, the typical college graduate earns an estimated $650,000 more than the typical high school graduate over the course of a 40- year work life as observed in Table 1.3.71 This study found that on average the typical high school graduate earns about $770,000 over a 40-year work life with no further education; the typical worker with an associate degree earns approximately $1.0 million; and the typical worker with a bachelor’s degree and no further advanced degree earns about $1.4 million. Even when the costs of attending college and other factors are subtracted from the income benefits, the net “payoff” from of a college degree is still quite substantial. For a typical student who graduated from an in-state, four-year public university, this net gain is about $550,000.72 The majors, specializations, and training that
and greater likelihood of retiring in other countries. Rather than abusing welfare, immigrants have given the entitlement portions a few more years of operation before bankruptcy. 70 See Silva Mathema, “Ending DACA Will Cost States Billions of Dollars,” Immigration (Center for American Progress: January 9, 2017). The gross domestic product (GDP) is one of the primary indicators used to gauge the health of a country’s economy. It represents the total dollar value of all goods and services produced over a specific time-period; you can think of it as the size of the economy. 71 The monetary return of a college education is influenced by a variety of factors, which include the type of higher education institution attended and the major field of study the student pursued. While this difference does not apply in all cases, on average the difference is substantial. See Table 1.4 in Appendix. 72 Pew Research Center, “Is College Worth It?,” Social & Demographic Trends (Washington, D.C.: Pew Social & Demographic Trends, 2011), 1-83. 40
DACA recipients are pursuing include early childhood education, biochemistry, computer science, creative writing, graphic design, neuroscience, nursing, social work, and urban planning, among many others, which are disciplines that generally earn higher salaries.73
C. ECONOMIC COSTS OF THE REMOVAL OF 11.4 MILLION FROM THE U.S
With the election of President Donald Trump, a strong support for border security and harder crack down on immigration policy among his supporters is evident. Some of the popular proposals have been to build a wall in the southern border, which the U.S. shares with Mexico. Others have proposed to deport all undocumented individuals in the
U.S. to send a strong message and deter others from arriving without proper permission from USCIS. However, carrying out these ideas would be very costly to tax payers.
Enforcing strong immigration policies is an expensive measure at both national and local levels. During fiscal year 2016, Immigration and Customs Enforcement (ICE), one of two agencies within the Department of Homeland Security (DHS), spent approximately $3.2 billion to identify, arrest, detain and remove undocumented immigrants, according to the
Department of Homeland Security. Each deportation conducted by ICE cost taxpayers an average of $10,854 in 2015-2016 fiscal year. This amount includes everything from housing and feeding a detainee to the fees involved with transporting individuals back to their home country.74
73 Wong, et al. “New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes,” 2016. 74 See Octavio Blanco, “How Much It Costs ICE to Deport an Undocumented Immigrant” (CNN Money, April 17, 2017). ICE handled about 240,000 of the roughly 450,000 total deportations that took place last year. Customs and Border Patrol was responsible for the rest. It also arrests and deports undocumented immigrants, but mainly those who try to enter the U.S. 41
The removal of all 11.4 million undocumented immigrants estimated to reside in the U.S. would be even more costly for the Department of Homeland Security, which is already underfunded. DHS would need to receive the necessary funding to pursue every undocumented immigrant in the U.S.— including the 800,000 people currently protected under DACA.75 A recent study found that the removal of these immigrants would have a large impact on the economy for several reasons. To start, it would take about 20 years to complete all removals and it would cost the government between $400 billion and $600 billion to do so. It is also estimated that without these individuals, the GDP would drop by nearly $1.6 trillion and their removal would eliminate 5.7 percent off economic growth.76
Enforcing immigration policy at a local level is also costly for local law enforcement. Take for instance, Prince William County’s policy derived from Resolution
07-894 implemented in 2005, which was mentioned in Chapter 1: Background History.
This policy came with an estimated five-year cost of enforcement of $11.3 million to the city of Manassas, Virginia. Aside from the costs, evidence further suggests a limited impact. Of the 636 suspected unauthorized immigrants questioned in the first six months of the program, about 45 percent were released with no charges, while 54 percent were arrested. Ten individuals were determined to be legally present. Overall, fewer than 2
75 See Carrol Doherty, “5 Facts about Trump Supportes' Views of Immigration” Pew Reserach Center FacTank News in Numbers (August 25, 2016). During the Republican primaries, most Trump supporters did not favor a national effort to deport all those in the U.S. illegally. 52% were opposed to unauthorized immigrants staying in the U.S. legally, while 47% said they should be allowed to stay if they met certain requirements. Today, voters who back a Trump presidency continue to be divided on priorities for U.S. immigration policy. 76 See Bernman Russell, “The Conservative Case Against Enforcing Immigration Law” The Atlantic (The Atlantic, March 6, 2015). Researchers Laura Collins and Ben Gitis estimates [GR] do not include the cost of constructing new courts, prisons, and other buildings that might be needed to process and detain millions of immigrants, etc. 42 percent of all persons charged with crimes in the county were unauthorized immigrants.
Additionally, it is unclear whether the new policy had an impact on overall crime or the population increase and overcrowding issue it aimed at resolving in the county; crime rates declined consistently from 2003 to 2007.77
Some, like Wong, have proposed that deferred action provides temporary protections and a more permanent solution would yield even greater benefits and provide greater prosperity for the country.78 Researchers argue that the nation would benefit from a sizable increase in GDP and income and a modest increase in jobs. The earnings of unauthorized immigrants would rise significantly, and the taxes they would pay would increase dramatically. Given that the full benefits would phase in over several years,
Wong argues, the sooner we grant legal status and provide a road map to citizenship to unauthorized immigrants, the sooner Americans will be able to reap these benefits. Wong further argues that legalization and a road map to citizenship promises greater gains for the American people and the U.S. economy than legalization alone.
All in all, the resulting productivity and wage gains that have been observed in
DACA recipients trickle down through the economy because immigrants are not just workers—they are also consumers and taxpayers.79 It is statistically proven that higher education and better jobs will increase their earnings and spending on the purchase of food, clothing, housing, cars, and computers. This spending will stimulate demand in the economy for more products and services, which creates jobs and expands the economy.80
77 Aubrey Singer, et al, “Immigrants, Politics, and Local Response in Suburban Washington” (Metropolitan Policy Program at Brookings, February 2009). 78 Wong, et al, Survey of DACA Recipients 2015, 2016. 79 Wong, et al., “New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes,” October 18, 2016. 80 Ibid. 43
Consequently, while securing the U.S. border and fixing a broken immigration system might be of importance in the current political climate, it is important to highlight that removing DACA eligible individuals is not the answer. In fact, such action would be greatly detrimental to our economy and our society. Given DACA’s economic and societal benefits, allowing deferred action to move forward and providing DACA eligible individuals benefits, such as fiscal aid to continue to pursue higher education or legally join the workforce, would permit larger rewards.
44
CHAPTER V: FAIRNESS AND SOCIAL ARGUMENTS
While one may see the economic benefits in allowing DACA eligible individuals to stay in the U.S. and obtain other advantages like financial aid, social security numbers and licenses, one may say the principle I have proposed permits only those that can successfully produce and pursue higher education to stay. This perspective may be a problematic stance to take as it assumes that if you are of no economic value, you should be removed from the U.S. It is important to note that our society is composed of more than just those who pursue higher education. The U.S. relies on multiple other individuals who are in the work force, serve in the military or are engaged in vocational careers. It is difficult to picture a working society where everyone is a doctor, an engineer or a lawyer.
A successful society is composed of multiple separate units, which each use their own distinct strengths in their respective fields to work together. In addition to various economic reasons why it is of great benefit to permit DACA recipients to continue to reside in the U.S., there are multiple moral and legal fairness reasons why if these minors can demonstrate that they are people of good moral character then they should be afforded the same advantages that allows them to continue to pursue higher education as the rest of the children they grew up with.
A. MORAL ARGUMENTS FOR FAIRNESS
There are different sorts of fairness arguments that may be applicable to DACA eligible individuals. I will focus on three distinct fairness arguments that support the idea that removing DACA recipients from the U.S. or inhibiting them from pursuing higher education is unfair. These moral arguments are (1) the unjust punishment argument that it is unfair to punish someone for something beyond their control; (2) the moral luck
45 argument that it is unfair to treat someone differently if the difference is due to bad moral luck; and (3) the ‘pot luck’ argument that it is unfair to deny to someone who contributes to a cooperative scheme the benefits that are generated from that scheme.
1. DACA’S UNJUST OR UNDESERVED PUNISHMENT
This first argument proposes the idea that it is unfair to punish someone for something that is beyond their control. It can be argued that the removal of DACA recipients from the U.S., in this case, is a form of punishment for DACA recipients.
Immigrant removal proceedings imply that an undocumented immigrant’s removal is necessary and well deserved because the unauthorized immigrant ought to be punished for being in this country without proper documentation. DACA eligible individuals are commonly known as DREAMers because they were brought to this country at a very early age in their childhood by their parents, legal guardians or relatives. They had little to no say in the decision to cross the border and move to the U.S., yet they face tremendous social, financial, and legal barriers because of it. In fact, many of these children are often 9 years of age or younger when they are brought to the U.S.81 It is important to keep in mind how these individuals ended in the U.S. and how it is not their fault that they are here, and that punishing someone for something beyond their control is unfair. In The Crime of Punishment, Karl Menninger writes:
“A patient may cough in the doctor’s face or may vomit on the office rug; a patient may curse and scream or even struggle in the extremity of his pain. But these acts are not ‘punished.’”82
Menninger’s point is that it would be unfair for a doctor to punish someone for throwing up on his or her office rug as this action was out of the patient’s control. In a similar
81 Gonzales, “Young Lives on Hold: The College Dreams of Undocumented Students,” 2009. 82 Karl Menninger, The Crime of Punishment (Bloomington, IN: Random House, 2007), 260. 46 manner, it would be unfair to punish DACA recipients for moving to the U.S. when they had no say in that event. DACA recipients did not cause their crossing of the U.S. border and thus should not be punished for this action that they had no control over.83
By revoking DACA, deporting these individuals back to their countries of origin or prohibiting these individuals from being a part of the very society they grew up in, the justice system is implying that they ought to be deserving of this punishment for something that is out of their control. Take for instance Dashi Tanaka and Indira Islas.
Both DREAMers were only 6 years of age when their parents relocated to the U.S. and decided to pursue a better life for their family. They have not returned to their country of origin since they left, which would make it challenging for them to identify with that respective country or speak their native language fluently.
2. MORAL LUCK
According to another sense of fairness, someone should not be treated different because of their bad moral luck. DACA children quickly picked up the new language and grew up embedded in American ideas. All this occurred as they played and engaged with their childhood neighbors or peers in the classroom, attended school field trips, represented their schools in athletic and extracurricular activities, and became part of the
83 Menninger’s position resonates with the determinist position that if we do not control our actions because they are determined by antecedent causes, it makes no sense to punish us. The Free Will and Determinism dialogue hints at the idea that individuals like DACA recipients are not morally responsible for their residence in the U.S. “Blaming and punishing someone makes sense only if someone has done something wrong. But just because someone has done something wrong doesn’t mean that he is morally responsible for it.” Clifford Williams states that one cannot punish another individual on a moral basis as individuals do not have control over their actions (i.e. we are not responsible for getting sick as it is not our doing). Similarly, DACA recipients are not responsible for their parent’s decision to move to the U.S. when they were minors because they are not morally responsible for this action. See Clifford Williams, Free Will and Determinism: A Dialogue (Indianapolis, Cambridge: Hackett Publishing Company, 1980), 46. 83 Wellman, “Immigration and Freedom of Association,” 119. 47 latest popular cultural trend—whether that was listening to top pop culture songs on the radio or watching the latest movie or Netflix series. These individuals quickly assimilated into the U.S. culture and adopted this country as their own motherland. DACA recipients lived regular lives just like the rest of their peers as they went through primary and secondary school. However, as they turned of age they began to be singled out and their reality of being different began to sink in. All this came all at once, although the only difference between them and their neighbor next door, their best friend or their teammate was a document and the luck of being born outside the U.S. border.
In “Immigration and Freedom of Association,” Wellman presents the egalitarian argument that it is “unjust that people should have such a dramatically different life prospect simply because they are born in different countries,” though he himself rejects this as an argument for open borders.84 This moral luck phenomenon is related to the belief that we should not blame someone for an action’s outcome that is beyond their control. A person should be morally responsible for “x” if and only if this individual has control over “x.” Taking this into consideration, it appears to be unfair that a DACA recipient’s luck of being born outside the U.S. border can have such a large impact on that individual’s life prospects. This second sense of fairness follows the first one closely in that one should not be punished for something that was out of their control, but this sense is a little different in that it highlights the brute luck in being born outside a particular set of borders.
84 Wellman, “Immigration and Freedom of Association,” 119. 48
3. DACA’S LACK OF ACCESS TO THEIR PIECE OF THE PIE OR THE POTLUCK PERSPECTIVE
The third argument for unfairness revolves around DACA recipients’ contribution and creation of resources (i.e. taxes) but their lack of access to their equal share or piece of the pie. As I mentioned earlier, undocumented individuals contribute millions of dollars to the social security fund yet are unable to reap any of the benefits of it. If one gets an invitation to a potluck, everybody, including oneself, is expected to bring a dish.
This contribution of food is done with the understanding that everyone else will be able to feast and enjoy each other’s contribution. The idea behind the potluck dinner is that if one contributes to a cooperative scheme, one is entitled to receive the benefits of that scheme, and being denied those benefits would be unfair.85 Like contributors to the potluck dinner, if DACA recipients have contributed they too should have access to licenses, financial aid, higher education, etc.
By the same token, the Selective Service Act of 1917 requires all male individuals, who are 18 through 25, to register with Selective Service regardless of immigration status. According to the Selective Service System website:
“With very few exceptions, all males between ages 18 and 25 must register with the Selective Service System (SSS) within 30 days of arriving in the United States. This includes U.S. born and naturalized citizens, parolees, undocumented immigrants, legal permanent residents, asylum seekers, refugees, and all males with visas of any kind which expired more than 30 days ago.”
While registration does not mean one will automatically be inducted into the military, this requirement by the Selective Service ACT of 1917 states that in times of war all individuals living within the borders of the U.S. have the duty to serve the U.S. military
85 George Klosko, “Presumptive Benefit, Fairness, and Political Obligation,” Philosophy and Public Affairs 16: 241-59 (1987). 49 and fight for the U.S. with their life regardless of their immigration status.86 It is unfair to require people, like DACA recipients, to register for the draft and answer to their duty of protecting this nation from harm in times of war, while we create hardships and multiple obstacles for them in times of peace. Likewise, it would be silly to require individuals to submit their FAFSA applications declaring their financial need regardless of their immigration status yet only grant them such aid in times of war when everyone is on the same side. It would be irrational to expect financial aid only in times of war if one has grown up pledging allegiance to the United States Flag the moment they began primary school. If we have invested so long in these children from Pre-K to senior year of high school and have seen the value of this investment, why ought we to stop simply because they turn 18 and graduate high school? On the other hand, Gonzalez states we ought to applaud their success and continue to aid and support these students in their pursuit of higher education or desire to serve the only country they know as home. If DACA recipients are people of good moral character and positively contribute to our society, then they should not be inhibited from pursuing higher education. Rather they should be afforded the same advantages and privileges as everyone else in their “potluck parties” or communities.
B. LEGAL ARGUMENT FOR FAIRNESS
In addition to the moral arguments for fairness, there are also legal arguments that provide some degree of fairness to these individuals, and which would support the principle of granting DACA advantages and the opportunity to pursue higher education.
The Supreme Court of the United States (SCOTUS) has found that the Fifth Amendment,
86 U.S. Selective Service System Website, “Who Must Register,” Official Webiste of the United States Government Selective Service System (2016). 50 as well as the Fourteenth Amendment, protects every person within the borders of our nation from the deprivation of life, liberty, or property without due process of law. It is imperative that we remember that even an “individual whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”87
In the 1982 Plyer v. Doe decision, the Supreme Court of the United States struck down a Texas law that denied Pre-K-12th grade education to undocumented children.
While education is not a fundamental right and illegal alienage is not a suspect class, the
Supreme Court emphasized that it was a right necessary for these minors to become an effective and intelligent class of young citizens with the capacity to participate in the political process. The court stated:
“The illegal aliens who are... challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under immigration laws, an alien is a 'person' in any ordinary sense of the term ... the undocumented status of these children does not establish a sufficient rational basis for denying benefits that the state affords other residents.”88
One may argue that since this decision was determined in the 1980s, when a high school diploma was enough to be competitive in the work field and to become an effective citizen, in today’s world (over 27 years later) this necessary education would translate to a college degree—the college degree that, as discussed in Chapter 2, some DACA recipients are unable to pursue.
Section One of the 14th Amendment in the U.S. Constitution set the basis for the consistent ruling of the court that aliens, legal or illegal, have constitutional protection in criminal and certain civil affairs in the justice system:
87 Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) 88 Plyer v. Doe, 457 U.S. 202 (1982) 51
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Furthermore, James Madison—founding father, fourth-president of the U.S. and one of the authors of the Constitution—wrote “that as they [aliens], owe, on the one hand, a temporary obedience, they are entitled, in return, to their [constitutional] protection and advantage” in an early journal. Hence, if we already afford equality and justice for all people, regardless of race, age, gender, ethnicity, religion, sexual orientation or immigration status, it is only fair that we allow existing DACA eligible residents to succeed and reap the potential benefits from it. After all, it is not their fault that they are here; it was not their decision to immigrate to this country.
52
CONCLUSION
When the DACA executive order was announced in 2012 many claimed it was
“unconstitutional” for the president to enact an executive order regarding immigration enforcement, which U.S. Congress has the plenary authority over. Today the Republican
Party struggles to respond to Obamas’ executive order without alienating Hispanic voters, whose votes will continue to be significant in future elections. Yet simultaneously they seem not to want to afford the rights of citizens to these 800,000 individuals for the fear of losing political control if they are, for example, allowed to vote in elections.89
Nevertheless, in his most recent Time interview President Trump appears to have changed his tone towards DACA eligible individuals:
“We’re going to work something out that’s going to make people happy and proud,” Trump said. “They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen” (Trump, 2016).90
While this is hopeful to some it is still ambiguous and does not offer a permanent solution. DACA has helped alleviate some of the issues that over 800,000 thousand out of the 11.4 estimated undocumented individuals face every day due to a lack of proper documentation. This executive program has helped its recipients integrate into society to some extent as they graduate high school. However, since it is only an executive order, these individuals continue to face obstacles as they pursue higher education or join the work force. Many face out-of-state tuition costs even though they
89 Civic engagement and why someone would oppose and care about membership rights is discussed earlier in earlier Chapter 3. 90 Trump’s Time Magazine interview in relation to his designation as “Person of the Year” on December 8, 2016. 53 pay taxes and have resided for many years in their respective states, and can rely on no financial support even though 30 percent of them fall below the poverty line.91
In light of these consequences and the emerging fiscal and social realities with respect to immigration, this thesis, while it does not advocate for open borders, proposes that given DACA’s economic and societal benefits, and given the moral demands of fairness, we should allow DACA individuals to remain, receive benefits, and have a path to citizenship. As studies have demonstrated, in its short time DACA has provide greater prosperity for the U.S.92 As supported not only by utilitarian and economic considerations but also by fairness principles, if these minors can continue to prove they are people of good moral character, exemplary individuals and positively contribute to our society then they should not be inhibited from pursuing higher education but rather should be afforded the same advantages as the rest of the children they grew up among.
91 Eusebio and Mendoza, “The Case for Undocumented Students in Higher Education,” 2. 92 Wong, et al, Survey of DACA Recipients 2015, 2016. 54
APPENDIX
A. LIST OF TABLES
Table 1.1: Number of I-821D, Consideration of DACA by FY, Quarter, Intake, Biometrics and Case Status: 2012-2016 (June 30)
93
93 See U.S. Homeland Security, “U.S. Citizenship and Immigration Services Biometrics Capture Systems Biometrics Capture Systems” CIS Consolidated Operational Repository (CISCOR) (June 30, 2016). 1- Refers to a request for USCIS to consider deferred removal action for an individual based on guidelines described in the Secretary of Homeland Security's memorandum issued June 15, 2012. Each request is considered on a case-by-case basis. 2- The number of new requests accepted at a Lockbox during the reporting period. 3- The number of requests rejected at a Lockbox during the reporting period. 4- The number of requests that were received at a Lockbox during the reporting period. 5- The number of requests accepted per day at a Lockbox as of the end of the reporting period. 6- Refers to capture of requestors' biometrics. 7- The number of appointments scheduled to capture requestors' biometrics during the reporting period. 8- Refers to consideration of deferring action on a case-by-case basis during the reporting period. 9- The number of new requests received and entered into a case-tracking system during the reporting period. 10- The number of requests approved during the reporting period. 11- The number of requests that were denied, terminated, or withdrawn during the reporting period. 12- The number of requests awaiting a decision as of the end of the reporting period.13- Data on biometrics scheduled are not available past 01/31/2016. 14- Data on rejections listed by initials and renewals is not available past 01/31/2016. 55
Table 1.2: Average undergraduate tuition and fees and room and board rates charged for full-time students in degree-granting postsecondary institutions, by control and level of institution and state or jurisdiction: 2012-13 and 2013-14
94
94 See U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System (IPEDS), “Fall 2012 and Fall 2013, Institutional Characteristics component; and Spring 2013 and Spring 2014, Enrollment component” (U.S. Department of Education, March 2015). Data are for the entire academic year and are average charges for full-time students. In-state tuition and fees were weighted by the number of full-time- equivalent undergraduates, but were not adjusted to reflect the number of students who were state 56
Table 1.3: Tuition Costs Comparisons in the State University System of Florida, Tuition and Required Fees for New Students on Main Campus, 2016-2017
95
Table 1.4 In-State Versus Out-of-State Tuition Costs Comparison in the State of Florida residents. Out-of-state tuition and fees were weighted by the number of first-time freshmen attending the institution in fall 2012 from out of state. Institutional room and board rates are weighted by the number of full-time students. Degree-granting institutions grant associate’s or higher degrees and participate in Title IV federal financial aid programs. Some data have been revised from previously published figures. Detail may not sum to totals because of rounding. 95 The mission of the Board of Governors Office is to mobilize resources and diverse constituencies to govern and advance the State University System of Florida by supporting and advocating for high-quality teaching, research, and public service. Report are publically released annually on their website (Florida 2016-2017). 57
96
Table 1.5 The Monetary Value of a College Education
97
96 See Pew Research Center, “Is College Worth It?,” Social & Demographic Trends, 80. Costs that make up the “Personal Expenses” category can include but are not limited to the following: clothing maintenance/laundry, computer/cell phone, student health insurance, etc. 97 See Pew Research Center, “Is College Worth It?,” Social & Demographic Trends, 6. Example assumes the bachelor’s degree holder does not also possess an advanced degree. Additional work- life earnings estimated for full-time, full-year workers ages 25-64 and using a 4% discount rate. Out-of-pocket costs assume the undergraduate attends four years full time at an in-state public college or university and do not include room and board. The College Board estimates that the average public four-year, in-state undergraduate pays $1,540 per year in 2010-11 in tuition and fees after grant aid and federal income tax benefits are considered. 58
B. LIST OF ILLUSTRATIONS
Figure 1.1 Percentage of first-time, full-time undergraduate students awarded grants and loans at 4-year degree-granting postsecondary institutions, by type of financial aid and control of institution: Academic year 2014–15
98
Figure 1.2 Average amount of financial aid awarded to first-time, full-time undergraduate students awarded financial aid at 4-year degree-granting postsecondary institutions, by type of financial aid and control of institution: Academic year 2014–15
99
98 See U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System (IPEDS), “Education's Institute of Education Sciences (IES),” Winter 2015–16, Student Financial Aid component, (March 2015). Student loans include only loans made directly to students; they do not include Parent Loans for Undergraduate Students (PLUS) and other loans made directly to parents. Degree-granting institutions grant associate's or higher degrees and participate in Title IV federal financial aid programs. 99 Award amounts are in constant 2015–16 dollars, based on the Consumer Price Index (CPI).
59
Figure 1.3 DACA’s economic impact in the lives of recipients as of June 2015
100
100 See Wong, et al, “Results from a Nationwide Survey of DACA Recipients Illustrate the Program’s Impact,” (Center for American Progress, July 9, 2015). Approximately 96% of DACA recipients currently work or attend school. Those who work are in better and higher paying jobs. Figure 1.3 demonstrates that DACA recipients are making significant contributions to the economy by buying cars and first homes, which translate into more revenue for states and localities in the form of sales and property taxes, and registration and title fees. 60
Figure 1.4 Tuition and State Aid for Undocumented Students and DACA Recipients by State as of April 2015
101
101 Catherine Eusebio and Mendoza, Fermín, “The Case for Undocumented Students in Higher Education” (Educators for Fair Consideration (E4FC), 2016), 2. States not marked do not have any known tuition equity law or policies. Undocumented or DACA grantees in these states may be able to enroll in colleges/universities; however, they may have to pay out of state or an international student tuition rate/fee. Information is currently being collected about whether DACA grantees are eligible for in-state tuition. No studies have realesed recent information. 61
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