Cornell Law School Convenes a Conference on the Past, Present, and Future of the DACA ProgramIthaca, NEW YORK, December 14, 2018
Amid the raging storm that is this nation’s debate over immigration, Professors Stephen Yale-Loehr and Jaclyn Kelley-Widmer have been like stubborn ship captains, valiantly trying to steer the conversation through turbulent seas and back to a safer harbor. This fall, with the 2018 elections in full swing, the pair organized the Law School’s groundbreaking conference, “Dreamers and Beyond: Our Broken Immigration System.”
Held October 5 at the New York City Bar Association and sponsored by the Charles Koch Foundation, the one-day conference accomplished something increasingly rare: a civil dialogue about an urgent immigration issue—the Deferred Action for Childhood Arrivals (DACA) program—among leading experts from across the political spectrum.
Established by the Obama administration in 2012, the DACA program has allowed nearly 800,000 undocumented young migrants who arrived in the United States as children to obtain a temporary reprieve from deportation and a two-year work permit. However, the Trump administration rescinded the program in September 2017 and gave Congress six months to come up with a legislative solution. Following Congress’s failure to act and the filing of a number of lawsuits, the matter is now tied up in federal courts, which have so far blocked the program’s termination.
“The DACA program is on life support right now,” says Yale-Loehr. “The president wants to terminate it. The courts have said so far that existing DACA recipients have to be able to renew their status, but nobody really knows what is going to happen long-term.”
With the lives of so many young people in limbo, Yale-Loehr and Kelley-Widmer decided to convene a forum of experts to understand how we arrived at this point and to chart a course forward. The resulting Dreamer Conference attracted nearly 150 attendees and eleven speakers who had been involved with DACA at the very highest levels, including former congressional staff, executive branch officials, immigration policy advocates, and a member of the House of Representatives, Carlos Curbelo from Florida’s 26th District.
The conference kicked off with an introduction from Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law, who suggested we reframe the conversation about our immigration system.
“We must start with an acknowledgement that we Americans are—with the exception of the nation’s indigenous communities—all of us immigrants,” he said. “Americans are—and always have been—an impure mixture, defined as a people by our ideals and commitments, not by blood or soil.”
Peñalver also discussed how the Law School has taken a number of concrete steps to assist the members of the wider Cornell community whose security was thrown into doubt by recent changes in immigration law. In particular, he praised the school’s clinical faculty for committing to provide legal assistance—without charge—to Cornell DACA students who need help renewing their DACA registrations or who are threatened with deportation.
Later, during lunch, Peñalver introduced Representative Curbelo as the keynote speaker, noting that the congressman is the son of Cuban exiles and a leading Republican voice on behalf of DACA recipients and immigration reform.
Rep. Curbelo delivered an impassioned talk in which he argued that comprehensive immigration reform is essential for this country’s future. He began by pointing out that “it’s not advisable to leave your district” in the middle of a close reelection campaign as he was doing, but that this issue was too important for him to stay away.
“Any time there is a thoughtful group of Americans who want to come together to discuss how we can solve the immigration puzzle in our country, I’m motivated to participate,” he said, adding that “we need to solve immigration for reasons beyond the issue itself.”
“I truly believe that fixing immigration in our country in a holistic, comprehensive, meaningful way could be the first important step in truly beginning to heal our country’s politics,” said Curbelo, “something we desperately need to do. Otherwise, we will see our institutions continue to erode and our democracy will be more at risk.”
Curbelo recounted his experience and frustrations trying to get immigration reform legislation passed in the House during a time when the discourse over the issue was becoming more divisive and toxic. After he was unable to move forward the bill he wrote—the Recognizing America’s Children Act—he and a group of colleagues began pressuring the Republican leadership with various legislative tactics to move forward with immigration reform. Eventually, Curbelo said, this effort led to the Border Security and Immigration Reform Act, which garnered a record number of Republican votes, but ultimately because of what a colleague of his called the “mystery math of immigration.”
Curbelo blamed the bills’ failure on “the cowardice of a lot of Republicans, who are worried about having to go to their base to explain why they are embracing a commonsense, reasonable solution to immigration, and the selfishness of Democrats, who want to use this issue in election after election after election, and if you solve it that comes to an end.”
“So, did we accomplish anything?” asked Curbelo. “I think we did. We now have a majority of the majority on the record. Now we have cleared that hurdle and I am confident that will be very useful in the future.”
The conference featured two panelists—Gaby Pacheco and Julissa Arce—who grew up as undocumented immigrants and went on to become leading advocates for immigrant rights. Pacheco, considered one of the founders of the Dreamer movement, was deeply involved as an activist in pressuring the Obama administration to develop the DACA program. Arce is the author of the best-selling book My (Underground) American Dream: My True Story as an Undocumented Immigrant Who Became a Wall Street Executive.
Pacheco described how in 2008, she and three other undocumented students walked for four months from Miami to Washington, D.C., to call attention to the plight of immigrant families under the threat of deportation. After campaigning for more than two years, she and other activists finally got the attention of the White House. But, Pacheco said, it wasn’t until the spring of 2012, when she learned that Senator Marco Rubio had started to work on legislation for Dreamers, that she started to think the political momentum might sway the White House to consider using deferred action as an administrative remedy for Dreamers.
“What I presented to the White House was, ‘There are two opportunities in our hand,’” said Pacheco. “We can go either way. But we do feel that you have the power to do this.”
Pacheco said she thinks that strong backing from within the Department of Homeland Security gave the White House the confidence it needed to create the DACA program. Even so, it still faced opposition from some administration officials.
“I remember in 2012, someone pulled me aside and spoke to me very harshly and told me, ‘You are going to be responsible for the first African American president losing his reelection campaign,’” said Pacheco. “I remember a torn feeling. Of course, I didn’t want Obama to lose, but at the same time, I said, ‘My first responsibility is not to the president. My responsibility is to my community and I need to do what is best for them.’”
The idea of being an advocate was something that didn’t seem possible for Arce until later in life. She recounted how, after working her way up to become a vice president at Goldman Sachs, she was inspired by Jose Antonio Vargas’s story about being undocumented.
“For the first time in my life, I felt like somebody else knew what it felt like to be me,” Arce said. “That’s really when I decided to leave Wall Street and share my story and hopefully make up for all of the advocacy that I never did when I was growing up.”
Arce and Pacheco were part of the first panel on “Politics, Passions, Parents: How the DREAMers Gained Momentum,” which traced the genesis of the Dreamer issue going back to 2001, when Senator Dick Durbin (D-IL) first introduced the Dream Act. Yale-Loehr moderated this panel, which also included Rebecca Tallent, who worked for Rep. Jim Colby, Senator John McCain, and House Speaker John Boehner, and has been involved with every major immigration bill in the last fifteen years.
Several other panelists also had extensive experience either developing immigration reform legislation or crafting the DACA program in the Obama administration. Enrique Gonzalez served as Senator Marco Rubio’s principal adviser and negotiator on a comprehensive immigration reform bill passed by the Senate in 2013. Tyler Moran, who has twenty years of experience with immigration policy, managed the development and implementation of the DACA program in the Obama White House. And Esther Olavarria, who was senior counselor to Director Jeh Johnson at the Department of Homeland Security, also helped develop and implement the DACA program from within DHS.
Tallent and Gonzalez agreed that the opportunity for comprehensive immigration reform has come and gone.
“I think the days of taking a 2,000-page piece of legislation to the floor of the House of Representatives are over,” said Tallent. “I think if you are going to get a bill through the House, John Boehner had the right idea: small fix bills through the House being sent over to the Senate as one larger package.”
Gonzalez noted that the current political environment rules out the type of negotiations he was working on in the Senate in 2012 and 2013. “There was give and take, there was compromise,” Gonzalez said. “Something that doesn’t exist anymore. There was willingness to be able to reach an agreement.”
During the conference’s second panel on “DACA: Administrative Attempts, Litigation Limbo,” moderated by Kelley-Widmer, Moran and Olavarria discussed the Obama administration’s administrative solutions to the Dreamer problem. Olavarria recalled that there were discussions within DHS as early as 2010 about administrative options, even as Congress tried to find legislative solutions.
Olavarria said that initially one of the biggest questions was, “Why aren’t we doing this through regulation instead of through administrative action?” The answer, she said, was that “the regulatory system at DHS was completely broken. It would have taken years. We wouldn’t have seen it in our lifetime.”
A fellow panelist, Josh Blackman, associate professor at the South Texas College of Law Houston, took issue with how DHS and the White House crafted DACA.
“I’m in a weird spot,” Blackman said. “I think that DACA is good policy. I don’t think the president had the authority to enact it and I don’t think it was enacted in a lawful manner. . . . They did not go through the proper administrative process and I also think it runs afoul of the president’s duty to take care that the laws of the United States are faithfully executed.”
The third panel, titled “No Way Forward, Yet No Way Back: Dreamers as Part of a Comprehensive Immigration Reform Solution,” provided an overview of the precarious nature of immigration quasi-status and discussed where policymakers may go from here. Muzaffar Chishti, director of the Migration Policy Institute office at the NYU School of Law, moderated the panel, which included Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration; Marshall Fitz, immigration policy specialist and legislative advocate at the Emerson Collective; and Mark Krikorian, executive director of the Center for Immigration Studies.
Fitz began the discussion by arguing that we shouldn’t look at DACA and other policies in isolation.
“I think we have to look at them through the prism of this raging, national identity debate that we are having right now,” he said. “There are fundamental questions we have to answer as a country: Are immigrants good for the country? Are we stronger as an inclusive society or as a walled-off nation? Is diversity an as- set or a threat?”
Feldblum explained how her organization was launched by college and university presidents in December 2017 in response to the rescission of DACA.
“These [college and university] presidents are looking at the urgency of the moment and the moral imperative, and coming from the position that diversity drives excellence, that inclusion spurs innovation, that immigrant students and immigration are good for the country,” she said.
Mark Krikorian discussed the rationale behind his organization’s “pro immigrant, low immigration” stance. “Our take on the issue is that mass immigration is different today than it was a century or two ago, not because the immigrants are different, but because we’re different,” he said. “There was no welfare state one hundred years ago. There wasn’t as much of a gap between workers and immigrant workers one hundred years ago.”
Yale-Loehr and Kelley-Widmer agreed that the conference was a success. “We didn’t solve the DACA dilemma,” said Yale-Loehr. “The issue is too complex to do that in one day. But we got key players on both sides of the debate to talk with each other. In this polarized political environment, that is a huge first step.” Kelley-Widmer added, “This conference was a unique and valuable opportunity to explore the legal and political underpinnings of the DACA program from all angles. Everyone came away with a refined understanding of this critical issue.”