The Minnesota State Bar Association (MSBA), an association of roughly 15,000 Minnesota Lawyers, has adopted an official position on the Deferred Action for Childhood Arrivals (DACA) repeal. The MSBA position represents a strong showing by Minnesota Lawyers in support of DACA recipients, often called "Dreamers." The DACA program has been an amazing and well-deserved immigration benefit for almost 800,000 individuals who came to the U.S. while under 16 years of age, and meet certain criteria, including that they have no significant criminal history. The DACA program, implemented by the Obama Administration, has provided work authorization and protection from removal (deportation) using powers granted to the Department of Homeland Security (DHS) by Congress. President Trump, in a statement issued by Attorney General Jeff Sessions on Tuesday, September 5, 2017, made the decision to end the DACA program, placing these hundreds of thousands of Dreamers in a precarious legal situation.
The MSBA position is based on a recommendation from the MSBA Immigration Law Section Council and the MSBA Diversity and Inclusion Council, which are sub-groups of the MSBA. Both sub-groups debated the wording of the proposed statement and came to a consensus. This blogger, who serves as Secretary of the Immigration Section Council, was honored to present the proposed statement to the MSBA Assembly, the MSBA's legislative body, in its meeting today, Friday, September 15, 2017. The discussion about the policy position included the argument that compassion and consideration of "equities" (positive vs. negative factors) are built into our legal system. For instance, criminal prosecutors will often give defendants a better deal if the defendant can show they have made efforts for treatment and rehabilitation, as well as that they show remorse for what they did. Particularly because of the fact that they are, mostly by legal definition, not criminals, DACA recipients certainly deserve this type of leniency in our legal system.
In the MSBA Assembly meeting, this blogger also pointed out that Congress has given the Department of Homeland Security (DHS), which is overseen by the President, the authority to grant work authorization, as well as the authority to decide when not to pursue removal (deportation). For many years, DHS has used this authority to decline prosecuting a removal (deportation) case in appropriate situations. For instance, in the past, DHS would often decline to deport someone who entered the U.S. legally, overstayed past their status expiration date, has become a part of their community in the U.S., but has not committed any crimes. DHS also has recently exercised its authority to grant work authorization, for instance, to spouses of professional workers seeking Permanent Residence.
In the MSBA Assembly meeting today to discuss the MSBA's position, a representative from the Minnesota Association of Black Lawyers (MABL) raised a valid concern that DACA or Dreamer legislation could be used to attach riders that are harmful to immigration, immigrants, or minorities, such as funding a border wall. This blogger pointed out in response that this concern is a good reason why keeping the program as an executive action makes some sense: Congress does not need to pass legislation because it has already given the Department of Homeland Security the appropriate authority. DACA was good policy-making in that it established guidelines for when DHS should exercise discretion, making the system more fair by establishing more well-defined expectations.
Another MSBA Assembly member pointed out that the proposed statement is not about executive action, but rather urges Congress to act. This is true. The MSBA statement is modeled after the American Bar Association (ABA) statement, and it is forward-looking. This blogger would suggest that despite the concerns that a "Dream" act would draw negative amendments, an act of Congress could present a stable and effective permanent solution for Dreamers. In particular, while the President can protect dreamers from removal/deportation and grant them work authorization through the powers given to DHS, only Congress can provide a path to Permanent Residence or Citizenship for Dreamers. The MSBA's new policy position does indicate, though, that it is responding to the President's decision to end DACA.
The statement proposed to the MSBA Assembly passed with no votes against it and no abstentions, demonstrating the strong support for Dreamers by Minnesota Lawyers. The official policy of the MSBA regarding the DACA program is now as follows:
MSBA Statement on DACA Repeal
In light of the announcement that the Deferred Action for Childhood Arrivals (DACA) program will be ended in six months, the Minnesota State Bar Association urges Congress to act quickly to pass legislation that provides a fair, orderly and safe way ahead for the young people affected by this change. The announced suspension of the DACA program without a ready legislative solution threatens the future of thousands of deserving people to pursue their dreams, and places them in danger of deportation. It also threatens our country’s access to a wealth of human potential.
The MSBA believes immigration reform should include a path to lawful permanent residency or U.S. citizenship for undocumented persons who entered the United States as minors and have developed significant ties to the United States while displaying good moral character and passing security screening.
Frequently referred to as Dreamers, the more than 800,000 people who entered the DACA program, including over 6,000 in the State of Minnesota, have significantly contributed to our country both economically and through industry innovation. Indeed, an open letter signed by hundreds of the nation’s top business leaders pointed out that Dreamers contribute $460.3 billion to the national gross domestic product and $24.6 billion in Social Security and Medicare tax contributions.
In addition to the economic reasons, the humanitarian motivation for the DACA program is compelling. Dreamers came to this country as children and have embraced this country as their home. To send them back to a foreign land that many do not even remember would be inconsistent with the values on which America was founded.