Essay Sample on DACA, TPS, and Human Trafficking

Human migration is a natural phenomenon that predates the existence of nation-states (Rice& Zegart, 32). After the global village became structured on the concept of sovereign states, modern human migratory flows have a variety of outcomes that may be deemed as positive or negative in the recipient nation (Martin, & Duignan, 3). The current ideological divide on immigration in America is between the movements for lax immigration so that it can be a vehicle for making nations more multicultural versus the movement to use restricted immigration as a tool to protect the integrity of each nation's distinct culture. Economic prosperity and quality of life in the United States (US) have historically been a magnet attracting millions of people from across the world to legally immigrate to the nation to chase the American dream (Rice& Zegart, 32). But the large presence of illegal aliens in the US has raised reasonable concerns among American citizens about the impact of illegal immigration on social cohesion, public safety, and economic well-being.

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Background

American citizens' attitudes about immigration can be distinguished in three periods (Martin, & Duignan, 3). The first period was the laissez-faire era in which there were very few limits on immigrant arrivals. The laissez-faire period happened between 1780 and 1875. Immigration policy and laws were handled by State governments. Consequently, during this era, America had an open borders attitude toward immigration. Hence anyone from anywhere could enter the country. For example, the Immigration Act of 1790 made it very easy for an immigrant to acquire citizenship (Martin, & Duignan, 4). The second period was the qualitative restrictions era limitations were placed to exclude certain groups of foreigners from immigrating legally into the US because immigration became controlled by the Federal government. This period lasted from 1875 to 1920. The qualitative restriction period began with prohibiting convicted criminals and prostitutes from immigrating into the US (Martin, & Duignan, 5). Next, the Immigration Act of 1882 banned immigration from China. Japan avoided a complete ban of immigrants from its nation because of the bilateral Gentlemen's Agreement of 1907 that created an obligation on the Japanese government to limit the number of passports it would issue for residency in the US (Zolberg, "Rethinking the last 200 years of US immigration policy"). The 1917 Immigration Act required that immigrants (1) be literate, (2) pay a tax, and (3) it also gave immigration officials the discretionary power to reject foreign nationals at official points of entry.

The US is currently in the quantitative restrictions era that began in 1921(Goldin, 223). Currently, immigration law and policy seek numerical limitations as well as qualitative restrictions. The quantitative era began with the passage of the Emergency Quota Act in 1921 which ended open immigration. The Act placed a specific limit of 150,000 people (including wives and children) who could come in annually from one country of origin. This was followed up by other statutes that barred immigration from some specific nations while at the same time putting limits on the number of people who can emigrate from specific nations. For instance, the Johnson-Reed Act of 1924 provided that the immigration visas be two percent of the total number of people of each nationality in the United States per the 1890 national census. A few days before 9/11, President George W. Bush and President Vincente Fox of Mexico had been engaging in high-level meetings to discuss immigration (Rosenbaum, "Immigration Policy since 9/11"). It was expected that they would announce a new immigration framework for the southern border that had an immigration reform plan, increase border security, a temporary worker program, and the legalization to illegal immigrants from Mexico. However, after the 911 attacks, security became the primary concern of quantitative immigration for American lawmakers. Consequently, apart from more security at America's borders, the government acquired expanded powers to detain and deport immigrants.

Statement of the Problem

DACA is a 2012 immigration policy by the Obama administration that directs adults who had been children when they were brought into the nation illegally can get (1) deferred action from deportation that is renewed every two years; and (2) access to a work permit as long as prospective DACA beneficiaries have no criminal record (New York Times, "What is DACA?"). Hence it is not a path to citizenship for this class of illegal aliens. In 2017, the Trump administration indicated that it intends to put an end to the DACA policy so that illegal aliens brought into the country can be deported (Sotnick, 1-5). While issuing an injunction on this plan, a circuit court conceded that prima facie, DACA is unconstitutional. The Supreme Court is likely to rule on the ability of the Trump administration to end DACA next year.

The TPS program was created by the 1990 Immigration Act (Chishti, & Yale-Loehr, "The Immigration Act of 1990").It allows the American Attorney General (AG) to foreigners from specific nations the ability to live and work in the US for a limited time because they can't return to their country of origin because of ongoing armed conflicts or devastating natural disasters. It is not a path to citizenship. In 2003, this discretionary power was divested from the AG and given to the Secretary of Homeland Security through the Homeland Security Act of 2002(Chishti, & Yale-Loehr, "The Immigration Act of 1990"). Under the Trump administration, the Department of Homeland Security (DHS) has opted to terminate TPS for Nicaraguans, Salvadorians, and Haitians. These countries have been the biggest beneficiaries of TPS . Now their citizens who have been residents in the US under the TPS program can either initiate the formal process of acquiring citizenship, risk their applications being rejected, and getting deported. Alternatively, they may stay in the country illegally and risk getting deported. Mexican drug cartels control every square inch of the Mexican side of the southern border (Davidson, 15). By some estimates, the trafficking of illegal immigrants into the US is a cartel revenue stream second only to the traffic of illegal drugs. The failures of the Mexican government to do it bit in fighting the drug cartels that use violence to traffic humans and drugs into the US through the porous southern border has become the basis for the Trump administration's border wall policy.

Observations

The Trump administration is well within its rights to abolish the DACA program. Refusing this proposition would be a reductio ad absurdum because it would mean that the policies of a previous Democrat administration would be legally binding on a successor Republican administration and vice versa. The general rule gleaned from Supreme Court precedents is that a new administration can change the policies of a previous administration, subject to the Administrative Procedures Act. The exception to this rule is that a new President can't change the policies of a previous administration if doing so amounts to an arbitrary or capricious exercise of executive power. DACA is not a binding source of law that creates legal obligations on the Trump administration. Furthermore, enforcing existing immigration law by deporting an illegal alien doesn't fall within the definition of an arbitrary or capricious act. An argument can be made that illegal aliens who were brought into the US as children should not be deported because they did not make a rational choice to break immigration law. The Supreme Court has defined a child as anyone below the age of 18 before going on to ban the death penalty and life without the guarantee of parole on 8th Amendment grounds. If children do not have the mental capacity to kill or commit serious crimes, they do not have the mental capacity to generate the intention to break immigration law. Consequently, they are entitled not to be punished with the same severity as an adult violating the same crime. Hence illegal aliens who qualify for DACA should not be deported but rather be given a path to citizenship.

The Trump administration is also well within its rights to terminate TPS for Nicaraguans, Salvadorians, and Haitians (or any other nationality for that matter). Enforcing immigration law by deporting TPS beneficiaries and their children does not meet the threshold of being an arbitrary or capricious exercise of executive power. Recently a circuit court acknowledged that the Constitution expressly describes how a foreigner can legitimately bring themselves under the jurisdiction of American law. Hence, the daughter of a Yemeni diplomat born in Connecticut before later leaving to go give material and emotional support to ISIS did not have a right of return because they were never an American citizen. Similarly, TPS beneficiaries were only allowed to temporarily stay in the US on humanitarian grounds. Hence they can be deported when their naturalization petitions are rejected. However, an argument can be made that married couples, comprised of one or two TPS beneficiaries, with no criminal record and young children born in the US should be exempted from deportation to protect the best interests of their American-born children. Instead, TPS beneficiaries should be put on the path to citizenship if (1) they entered the US through official ports of entry when their nation was classified as having TPS; (2) they have no criminal record; (3) they are married and raising American-born children.

Building a wall raises the cost of trafficking humans into the US by Mexican cartels. Be that as it may, human traffickers will find other ways to transport mostly women and little girls into the US. Under American law, victims of human trafficking are entitled to a U non-immigrant status (U visa) when they are willing to help law enforcement prosecute their victimizer (USCIS "Victims of Criminal Activity: U Nonimmigrant Status"). The U visa is subject to renewal every 4 years. If a holder of a U visa is a productive citizen with no criminal record, they should be given a clear path to citizenship as the reward for cooperating with DHS and ICE or other Federal Agencies to break up human trafficking syndicates.

Works Cited

Rice, Condoleezza, and Amy B. Zegart. Political Risk: Facing the Threat of Global Insecurity in the Twenty-first Century. Hachette Book Group, (2018).

Martin, Philip L., & Peter Duignan. Making and Remaking America: Immigration into the United States. Hoover Press, (2003)

Zolberg, Aristide. "Rethinking the last 200 years of US immigration policy." Migration Information Source, (2006).

Goldin, Claudia. "The Political Economy of Immigration Restriction in the United States, 1890 to 1921." In The regulated economy: A Historical Approach to Political Economy. University of Chicago Press, (1994)

Rosenbaum, Marc R. "U.S. Immigration Policy since 9/11: Understanding the Stalemate over Comprehensive Immigration Reform."(2011).

Chishti, Muzaffar, and Stephen Yale-Loehr. "The Immigration Act of 1990: Unfinished Business a Quarter-Century Later." March 9, 2016, https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf

Dickerson, Caitlin. "What is DACA?" The New York Times (2018).

Sotnick, Ryan. "Is DACA's Rescission Judicially Reviewable?" SSRN, 25 Aug. 2019, http://dx.doi.org/10.2139/ssrn.3441507

"Victims of Criminal Activity: U Nonimmigrant Status." USCIS, 3 Sept. 2009, https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status.