Immigration Reform: President Obama Undercuts Marco Rubio With His Version of the DREAM Act

The political heat had been building for months on the Obama administration to provide a solution, even if only partial, to the plight of young people who came to the U.S as children, and were raised as Americans but had little chance to make it in this country.

Three months ago, Republican Senator Marco Rubio mounted a major challenge to Democrats when he announced that he would craft an alternative bill to the DREAM Act to legalize certain young people who came to the U.S while they were children, albeit without offering them a path to citizenship.

The Obama administration perceived Rubio’s effort as a mere attempt to help repair his party’s damaged image with Hispanics after a long presidential primary with strong anti-immigrant rhetoric and to position himself as a potential vice-presidential pick or future White House contender. Yet, at the same time, it also realized that resisting collaborating with Rubio was becoming a problem.

Rubio had been reaching out to a number of immigrant advocates that had usually been White House allies and had asked them to help him draft his promised bill. Though immigration advocates were suspicious of Rubio’s efforts and also preferred the DREAM Act that offered a direct path to citizenship, some of them said they were open to Rubio’s proposal because it would at least provide some relief to people that were at risk of being deported. These included Gaby Pacheco, an immigration activist who has become one of the best known leaders among the young undocumented population, the so-called dreamers; Janet Murguia, president of the National Council of La Raza; and Democratic Representative Luis Gutierrez, who has been one of the most vocal critics of Obama’s deportation policies. All three had met with Rubio at some point and had discussed possibilities of working together.

Ever since the DREAM Act failed to pass in Congress in December 2010, advocates for this bill had been pushing the Obama administration to take some executive action to protect young undocumented people who were raised in this country, from deportation and provide them with some legal option to remain here while Congress passed an initiative that could offer them with a better alternative. They suggested some administrative options, some of which were also summarized in a recent letter from legal experts to the president:

1)  Deferred action, a form of prosecutorial discretion that “can prevent an individual from being placed in removal proceedings, suspend any proceedings that have commenced or stay the enforcement of any existing removal order.” This option also allows individuals to obtain temporary work permits.

2) Parole-in-place, an administrative procedure that grants the Attorney General the discretion to parole into the U.S any alien applying to stay in the country, because of urgent humanitarian reasons or significant public benefits. This procedure was used by President Jimmy Carter in 1980 and President Clinton in 1994, to allow Cubans into the United States, and more recently by the Obama administration in 2010 to allow Haitian orphans that lost their parents during the devastating earthquake that took place in their country, remain in the U.S. to be adopted by U.S. citizens.

3) Deferred enforced departure, another form of prosecutorial discretion that allows a specific population to remain in the country for a specific period of time because of a particular situation and that has been granted to different populations by virtually all administrations, including most recently by the Obama administration in 2009 and 2011 to Liberians forced to flee their country as a result of armed conflict and widespread civil strife.

Yet, officials within the Obama administration were very reluctant to take steps in any of these directions because providing a relief to dreamers, in contrast to providing it to Liberian war refugees or Haitian orphans, would be immediately identified by Republicans in Congress as a move towards amnesty for the wider undocumented Latino population.

The administration defended itself by arguing that Republicans had resisted every administration effort in favor of the immigrant community. Indeed Republicans went so far as to issue a subpoena to the Department of Homeland Security last November to get a list of undocumented immigrants who have been flagged as having committed crimes but had not been detained or placed in removal proceedings by the agency. The goal of that subpoena was to challenge the prosecutorial discretion policy adopted by the Obama administration whose main goal was to focus all governmental efforts on deporting those who represented a challenge to national security or to public safety, and place the cases of all other immigrants under removal proceedings under “administrative closure,” a procedure that removes them from the dockets of an Immigration judge and allows them to remain in the country, until new legal action is taken. Therefore, it did not make sense to create the expectation among dreamers that their problem could be solved by an executive order when this order could be easily overturned. From the administration's perspective, it was better to focus all its efforts on passing the DREAM Act in Congress.

Recently, however, it became clear that unless the administration took visible action promptly, it would lose political initiative to Rubio, who was expected to introduce his bill very soon, and miss a strategic opportunity to mobilize the support of Hispanics for the November elections whose political participation will be crucial to win battleground states such as Arizona, Colorado, Florida, Nevada, and Virginia. Hispanics had been very disappointed with the Obama administration because of the number of deportations carried out during his tenure (1.2 million immigrants so far) and there was the need for bold action to re-energize this segment of the electorate for the coming elections.

Taking an administrative action to benefit dreamers was actually a safe bet. Most Latinos have expressed their support for the DREAM Act at different times, while the DREAM Act has also enjoyed strong support across party lines. In a 2010 survey, for instance, 66 percent of voters expressed their support including 81 percent of democrats, 60 percent of independents, and 57 percent of Republicans. This meant that helping this population would not alienate other segments of the electorate, which Obama needs to win.

It also helped to shape the political environment that the dreamers’ cause was being picked up by the mainstream media in a more significant way than ever before in recent weeks. Just on June 10, the Washington Post run a major front page story narrating how Heydi Mejia, a young immigrant who was brought from Guatemala when she was four years old and who was just about to graduate from high school with very good grades was scheduled to be deported in 10 days, and her dreams of becoming a nurse in the U.S. would be shattered probably forever. She was being forced to go back to her country of origin with her mother, without even knowing where to live and what to do there, not having any practical knowledge of that country. A few days later, on Thursday 14, Time magazine devoted its cover to the dreamers with the statement “we are Americans, just not legally”.

This prepared the perfect environment for the Obama administration to announce its new immigration policy. The President will finally make use of deferred action, stopping deportations, and beginning to grant work permits to undocumented immigrants that were brought to the U.S. before they turned 16, are under 30, and have been in the country continuously for at least five years, have a high school diploma or a GED, or served in the military. This is just what DREAM Act advocates had been begging him to do for some time.

In practice, the new policy announced by the Obama administration does not go beyond what Marco Rubio had declared he would do and never did. It does not provide a path to citizenship to dreamers, and it does not offer them a stable long-term solution either. Yet, this action had become one of the most politically and morally significant acts of his administration: It not only has helped Obama to recover the support of the Latino electorate and put the Republicans on the defensive, but it has also helped changed the terms of the immigration debate that has been guided by right wing nativists for the past decade, by arguing that dreamers “are Americans in their hearts, in their minds, in every single way but one -- on paper."

The President has thus presented immigrants, even if for the moment only those who came at a young age, in a light not seen in the public debate for a long time: not as criminals, not as people who come to steal American jobs, but as aspiring and contributing members of this society regardless of their legal status. This is what immigrants have always been in this country. For defending this tradition he should be commended.

This article originally appeared on Demos' Policy Shop blog.