Raul I. Jauregui: Public comment in the Federal Register in support of DACA from a DACA and student discipline lawyer.
Raul Ignacio Jauregui, Esquire
The Jauregui Law Firm
720 Arch Street
PO Box 861
Philadelphia, PA 19107
(215) 559-9285
PA Bar ID No. 92366
COMMENT ON PROPOSED RULE PUBLISHED AT 86 FR 53736[1]
U.S. Citizenship and Immigration Services, DHS.
DHS Docket No. 2021-0006
Comment Tracking Number: kuc-qicw-sg1j
The debate over whether someone who has lived in the United States since age 6 belongs in the United States, or in the place of their birth, happens at the confluence of American progressiveness, racism, and fear. The present chance under the Administrative Procedures Act (APA) to submit public comments like this one, in support DACA, merely highlights this tension: To say that a DACA recipient is, or is not, de facto an American ignites either the best, or the worst, in the American project.
Clearly, the Biden Administration’s efforts to preserve and to strengthen DACA, and perhaps to eventually expand it so it marches its beneficiaries onto full American citizenship, through the proposed rule, harmonize with the traditions of our nation; with our “better angels” such as they still exist today.[2]
SUPPORT FOR DACA EMBODIES THE AMERICAN PROJECT AT ITS BEST:
On June 15, 2021, then Secretary of Homeland Security Janet Napolitano exercised her prosecutorial discretion, optimally focused the powers of the Customs and Immigration services under her supervision, and confronted head on the inescapable fact that all the young men and women who then went on to enroll in DACA did not violate the US’ immigration laws, because they are:
“…young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law…”[3]
Ever since, over 800,000 young men and women have enrolled in DACA.[4]
DACA recipients took to the DACA program like fish take to water. The DACA biennial renewal rate, estimated at 93%, is unheard of in terms of voluntary compliance with a government program.[5] By way of comparison, the IRS nets out the US rate of mandatory income tax filing compliance at 83.7%.[6]
DACA recipients belong to a marketing ripe, and social media platform savvy, age cohort as 66% of them are under 25, and none of them are over 36.[7] They Snap, they buy both goods and services—mostly through their smart phone, and their purchasing power creates high-paying jobs in the US.[8]
DACA recipients skillfully staff the front lines of the US healthcare system—including dealing, hands-on, with the COVID crisis.[9]
Finally, for a District Court to void the Napolitano memo because it did not follow the APA—which an agency director issuing a memorandum on her discretion does not need to follow—now provides a forum to secure the goodness of DACA.[10]
I SPEAK FROM MY EXPERIENCE WORKING WITH DACA RECIPIENTS WHO INVOKE THEIR EDUCATIONAL AND IMMIGRATION RIGHTS
DACA beneficiaries enter the marketplace as de facto, highly-skilled citizens who have benefited from years’ worth of public investment in their education, and often in their health. They come to me with legal questions on a spectrum from school discipline (which falls more harshly on students of color in the first place), to outright violations of their Title IX and Title VI rights. From that years-long experience, derived from a rich, diverse, and representative sample, I unreservedly believe that DACA’s beneficiaries understand and thus love best one way of life: That which they learned while growing up in hometowns strewn all across the United States.
BASED ON THE ABOVE STATISTICS AND ON MY EXPERIENCE, I SUPPORT THE FOLLOWING SECTIONS OF THE PROPOSED RULE:
Sec. 106.2 Fees:
“The current total fee for DACA requests is $495, which reflects the $410 fee for Form I-765 and the $85 biometrics services fee; the total fee is not waivable. This proposed rule would modify existing practice for requesting DACA by making the request for employment authorization optional.”
The proposed change may benefit DACA recipients most of whom face not just a steep application fee but also additional, and sometimes unaffordable, legal fees related to preparation of the DACA application. The reality remains that DACA is self-funded through these very fees which, under the proposed rule, allow petitioners a better chance to understand their risk of losing the entire application fee before paying all of it.
Sec. 236.22 Discretionary determination:
“DHS proposes to retain the threshold criteria of the DACA policy in part for reasons previously discussed and in part due to recognition of the significant reliance interests of individuals who have previously received DACA grants, as well as those similarly situated who have not yet requested DACA.”
While this section’s grant of discretion to the adjudicator to deny an application that meets the threshold criteria exposes the whole program to systemic bias, the gist of this section successfully states a lesson in good civics, namely, that the word of the United States, as given under DACA to persons present in the United States, who then trusted that word, and to those similarly situated, who have not yet relied on that word out of fear or misinformation, is a covenant etched in stone.
1. THRESHOLD CRITERIA AND BURDEN OF PROOF
“Consistent with current practice, DHS would accept either primary or secondary evidence to determine whether the DACA requestor meets the threshold criteria. As used in the proposed rule, primary evidence would mean documentation, such as a birth certificate, that, on its face, proves a fact. Secondary evidence would mean other documentation that is more circumstantial and could lead the reviewer to conclude that it is more likely than not that the fact sought to be proven is true. Examples of secondary evidence include baptismal records issued by a church showing that the DACA requestor was born at a certain time or rental agreements in the name of the DACA requestor's parents to demonstrate periods of residence in the United States. Secondary evidence may require corroboration with other evidence submitted by the requestor.”
These provisions of the threshold determination continue to reflect a first world understanding of home country documentation and of the ability of the DACA applicant to find and to obtain these records. Mexicans, no doubt, count with an extraordinary resource because of the extensive network of Mexican Consulates in the United States.[11] Yet, these provisions would benefit, in my opinion, from greater clarification on further examples of circumstantial documentary evidence that DHS would accept as part of a DACA application from persons who, unlike Mexicans, do not benefit from powerful consular help, for example:
• A North Korean woman who meets the threshold requirements, but who realistically cannot obtain proof of age-related documents from, or for that matter even communicate with, relatives in Pyongyang.
• A Tzʼutujil man, who meets the threshold requirements for he believes his age qualifies him, but who does not actually know his age, as he was never registered or baptized in Guatemala because his family do not speak Spanish, or practice Catholicism.[12]
Sec. 236.24 Severability:
“However, in the event that any portion of the proposed rule is declared invalid, DHS intends that the various aspects of lawful presence for DACA recipients be severable…. Likewise, DHS proposes that employment authorization for DACA recipients would be severable from lawful presence as well as forbearance from removal. DHS is including a provision in the proposed regulatory text to that effect.”
The severability provision in the proposed rule mitigates risk recognizing the unfortunate fact that DACA, as described in the preamble to the proposed rule, has been and likely will continue to be the target of litigation. To make DACA’s benefits severable, a quotidian concept of contract law, benefits the DACA recipients greatly as the rule treats them just as they would be treated when entering into any other contract with a severability clause.
OPPOSITION TO DACA CLOTHES RACISM IN DIFFERENT ROBES:
Often, conservative analysis gets high jacked by racists who object to that they fear claiming allowing it—the object of their fear, the foreign person for DACA purposes—runs counter to the founding fathers’ intent. However, as every solid conservative knows, the DACA project revives the founding fathers’ reality which was that 8 out of 56 of them were born abroad, and still found themselves American enough to fight against dread George III after having lived in the colonies.[13] Admittedly, most of these “foreign” founding fathers were not white in the eyes of their King to begin with—rather they were uncouth and often Catholic subjects from Ireland, Scotland, or Wales.
Those second-class identities—Irish Catholic, papist Scot, Welsh in general, inevitably exposed these now-patriots to systemic colonial English racism. Arguably, the severe impact of this systemic racism on their careers gave those founding fathers an even greater incentive to create an inclusive post-colonial system; regardless of their place of birth. They fought, or paid, for just that privilege. [14] We live in their legacy.
Similarly, DACA’s beneficiaries today (most of whom are Mexican by birth[15]) seek a new and inclusive identity to shed their incompatible legal status. For a DACA recipient, identity does not flow from place of birth, but rather from place of residence. DACA’s beneficiaries look and think just like any other children from the communities all across the US where they grew up. To boot, as solid analysts promise, over time, DACA’s recipients will improve their local economies,[16] due to their new identity, one that harmonizes who they are with where they live, thus fitting perfectly with the founding fathers’ equality intent. To say the founding fathers meant otherwise, or that securing DACA will not trigger local economic growth, is pretext, and suggests a scared racist ineptly seizing upon the solid work of an Originalist.
CONCLUSION
The proposed DACA rule satisfies the APA and manages to treat its current and pending beneficiaries with fairness; in fact, with a greater fairness, at times, than that which the original program envisioned. The effort to guarantee that fairness for these young men and women embodies the very best traditions of civic equality and excellence that started long ago, when the founding fathers, including the foreign ones, met here, in Philadelphia, and drafted other documents, that founded this nation.
Sincerely,
/s/ Raul Jauregui
_________________________
Raul I. Jauregui, Esq.
Philadelphia, PA
October 4, 2021
[1] https://www.federalregister.gov/documents/2021/09/28/2021-20898/deferred-action-for-childhood-arrivals
[2] A CNN poll in 2018 found that 84% of respondents believed DACA should continue, allowing Dreamers to remain in the country; 11% thought the program should be stopped and Dreamers should be subject to deportation; and 5% had no opinion.
https://cdn.cnn.com/cnn/2018/images/01/19/rel1a-trump2c.shutdown2c.immigration.pdf at page 5.
[3] Through its laconic power, the Napolitano memo has become a classic of passionately logical legal thought as created and implemented by the government of the United States.
[4] “Approximately 800,000 young unauthorized immigrants have received work permits and protection from deportation through the Deferred Action for Childhood Arrivals program, or DACA, since its creation five years ago. And nearly 690,000 of these immigrants are currently enrolled in the program, according to new data from U.S. Citizenship and Immigration Services.”
[5] “What is clear is that the vast majority eligible to renew the two-year DACA grant have done so—93 percent MPI estimates. These near-universal renewal rates suggest the initiative is providing valuable benefits to participants.”
[6] “The voluntary compliance rate is now estimated at 81.7 percent compared to the prior estimated rate of 83.1 percent. After accounting for enforcement and late payments, the net compliance rate is 83.7 percent.”
https://www.irs.gov/newsroom/the-tax-gap
[7] According to the London School of Economics, as of June, 2017, “50% of [Snapchat] users are under 25 years old, and 23% have not yet graduated from high school. The largest Snapchat age demographic, however, is 18- to 24-year-olds. This age group makes up 37% of Snapchat users and 25- to 34-year-olds make up about 26% of Snapchatters.” See, https://info.lse.ac.uk/staff/divisions/communications-division/digital-communications-team/assets/documents/guides/A-Guide-To-Social-Media-Platforms-and-Demographics.pdf.) Same for Instagram, “[a]ccording to one study, 17% of teenagers say that Instagram is the most important social media platform to them and 90% of users are under 35 years old. (id).
[8] “Some of the best evidence on this was raised by economists John McLaren and Gihoon Hong, who found that every immigrant to the U.S. creates 1.2 new jobs—almost all going to U.S. citizens. Here, McLaren and Hong aren’t measuring whether immigrants are taking jobs away from existing native-born workers, but are rather measuring the number of new jobs created by each new immigrant consumer. In the parlance of economics, this study points to the increase in demand for jobs, rather than the supply.”
https://fortune.com/2017/09/11/daca-immigration-economy-donald-trump/
[9] “Approximately 27,000 DACA recipients are healthcare workers—including nurses, dentists, pharmacists, physician assistants, home health aides, technicians, and other staff—and nearly 200 are medical students, residents, and physicians.” That is the position stated in the amicus curiae brief for the Association of American Medical Colleges, submitted to the Supreme Court in support of DACA.
[10] “On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that DHS violated the APA when it created the DACA program in 2012 because it exceeds the power that Congress delegated to the executive branch. Specifically, Judge Hanen held that DHS was required to go through notice and comment rulemaking under the APA.”
[11] “DACA applicants’ countries of origin vary in how they assist applicants. For example, Mexican consulates in the United States have held more than 5,000 DACA information sessions and have worked closely with potential applicants to become a vital source of information and trust.”
[12] https://artsandculture.google.com/entity/tz%CA%BCutujil-people/m0774vn?hl=en
[13] “Two were born in England (Button Gwinnett, Robert Morris), two in Ireland (George Taylor, Matthew Thornton), two in Scotland (James Wilson, John Witherspoon), one in Northern Ireland (James Smith), and one in Wales (Francis Lewis).”
https://declaration.fas.harvard.edu/faq/how-many-signers-were-born-american-colonies.
[14] Although he would run into financial trouble later, on unrelated grounds, at the time of the war of independence, an English born founding father, Philadelphia resident Robert Morris, often financed, out of his own purse, the expenditures for General Washington’s entire Continental Army. https://www.battlefields.org/learn/articles/robert-morris-financier-american-revolution
[15] https://www.brookings.edu/blog/brookings-now/2015/06/09/top-5-countries-of-origin-of-daca-immigrants/
[16] “Economists have found common ground on the topic because study after study reinforces the notion that immigration makes native-born Americans better off on a wide range of effects—innovation, the price of goods and services, the number of jobs, government finances, and even wages. Across the board, the overwhelming bulk of evidence points to improved livelihoods for Americans.”
https://fortune.com/2017/09/11/daca-immigration-economy-donald-trump/