What makes DACA recipients deserve to stay in the country permanently?
In the section I, the reasons to get US citizenship were numbered and basically what the laws of the new country evaluated was the length of the permanency in the country and the type of relationship the newcomers had with the country. It basically encircles two approaches: affiliation and territorial personhood or jurisdiction.
In section II, the eligibility and the early achievements of DACA are provided as a proof of positive change with responsibility that are allowing these young people to be part of American society by participating actively in the market.
In section III, we get back to the two main approaches that US government has been using to determining if a foreigner has strong ties to the country. To this end, theoretical and legal approaches on affiliation and jurisdiction will be developed accordingly.
A. – Connections to Country: Affiliate-based approach
The definition of affiliation may be very broad in its context. In its legal definition, affiliation is linked to association and connection . The meaning that really interests us in order to know what really connects people to each other is found in the theory of mind. Seyfarth and Cheney stated that “empathy and affiliation help individuals to form and maintain social bonds, and these bonds promote fitness. . On other words, “a variety of evidence suggests that reflexive empathy and imitation in…humans…have evolved because they promote affiliation and social bonding.”
This definition can answer the questions of why some newcomers develop quickly strong bonding with a new country based on empathy and affiliation. Hiroshi Motomura has described “immigration as affiliation” as “the view that the treatment of lawful immigrants and other noncitizens should depend on the ties that they have formed in this country.”
The affiliation-based approach, as Motomura explained, “reflects two strong intuitions, which combine to explain why immigration as affiliation has persuasive power. One of these intuitions is that coming to America is not a stark moment of choice on the immigrant’s part or a sudden acceptance on her new country’s part. Instead, it is a gradual decline in a newcomer’s attachment to her former country as part of an incremental process in which her life’s center of gravity shifts to the United States. Immigration as affiliation recognizes this change in an immigrant’s life.” The second intuition also “reflects…that in this world of nation-states, it is an essential part of personal identity to belong to one of them, and that belonging is principally a matter of social connections.”
Joseph Carens’s arguments on unauthorized immigrants to get for amnesty stated: “there is something deeply wrong in forcing people to leave a place where they lived for a long time. Most people form their deepest human connections where they live-it becomes their home”… “People who lived and work and raise their families in a society become members, whatever their legal status. That is why we find it hard to expel them when they are discovered.” This argument emphasizes affiliation people have with the place they raise and live for a long time. Is there here a right for them to stay permanently in that territory?
David Miller, a prominent philosophy scholar, in his book “On Nationality” emphasizes the importance of ties (affiliation) to the nation that are worthy to quote here. He stated that communities are bound together by “natural sentiments” which develops a national identity on individuals; this distinctive about national identity is what Milles defines as requirement to national character: “it requires that the people who share it have something in common, a set of characteristics that in the past was often referred to as ‘national character’, but which I prefer to describe as a common public culture.” This definition may anyone think about why two people from the same country if they meet abroad connected quickly even if they never knew each other or went to the other’s hometown.
Klingsberg stated that an excludable alien has “little to lose in the admissions process because they have yet to established meaningful ties to this country. In words of Klingsberg, an excludable alien refers to any alien participating in an immigration process and not yet legally considered to have entered the country.” And an alien that has entered the country refers to any alien that has been admitted lawfully under INA or has physically come into the country unlawfully by evading the admission process. In other words, the odds for any alien who does not have meaningful ties to the country are lower than any alien who already entered the country either lawfully or unlawfully due to the meaningful ties that the latter has developed during his stay in the country. None alien from the first group may invoke affiliation-based approach because there is not any existing tie wherein support his claims.
This is as part of Entry doctrine developed in his article. He stated that “in developing the range of substantive rights protected by the due process clause, courts have constantly held that there is no inherent right to enter the United States. This ‘entry doctrine’ has serious consequences for excludable aliens.”
What does the Court state in regard to this approach? Under United Stated Ex Rel Knauff v. Shaughnessy , the petitioner was a war bride that sought review of a decision of the Second Circuit which upheld Attorney General that her entry into the country would be prejudicial to the security and safe of the country. The petitioner was a German national that got married an American soldier after the end of the WWII. She had worked for the U.S. War department in Germany and her behavior was rated very well.
The Court stated that “an alien who seeks admission to this country may not do so under any claim or right.” Under Entry doctrine, Shaughnessy had little to lose in the admissions process due to her little ties to country. Even when she was married an American soldier, Attorney General considered her ties was not enough for her entry and naturalization. The Court went beyond and stated that “aside from the enumerated relaxations of the immigration laws she must be treated as any other alien seeking for admission.”
Under Landon v. Plasencia , the Court stated that initial admission to the United States does not render constitutional rights to the alien for the power to admit and exclude them; however, “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” There is no doubt that alien within US territory has more constitutional rights literally speaking than alien seeking admission into the country.
B. – “within juridisdiciton”: Equal Protection to Aliens Regardless of Their Current Statues
People wonder if an alien by not being a US citizen has any right under the US constitution and if they should claim for those rights like any American citizen. The fourteenth Amendment states that “…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Both Constitutional doctrine and US Supreme Court rulings have stated that aliens are protected regardless of their immigration status by the US Constitution like any other US citizen.
What is jurisdiction? It is the question that emerges straight away. The meaning of jurisdiction is broad and many times national and international doctrines are interwoven to each other to define the meaning. Under the Restatement (Third) of the Foreign Relations Law of the United States, jurisdiction is divided into three categories: jurisdiction to prescribe, which means the ability of a country to make its law applicable to persons, conduct, relations, or interests; jurisdiction to adjudicate, which means country’s ability to subject persons or things to the process of its courts or administrative tribunals; jurisdiction to enforce, which means the ability of a country to induce or compel compliance or to punish noncompliance with its laws and regulations. Does any alien regardless of their immigration status fit in all or any of those descriptions? Yes, they do.
Olivas, in his article regarding Plyler, stated that the protection to unlawful immigrants is subject to the Equal Protection clause since immigrant was within the jurisdiction of the fourteenth amendment: “equal protection applied to the undocumented in such an instance.” … “The Supreme Court had long held that aliens are persons for purposes of the Fourteenth Amendment, and that undocumented aliens are protected by the due process provision of the Fifth Amendment.”
A question arises in the direction on why a state should guarantee constitutional rights to aliens and even more to undocumented aliens. Carens answers this citing Nozick that “the states has no rights to do anything other than enforce the rights which individuals already enjoy in the state of nature. Citizenship gives rise to no distinctive claim. The state is obliged to protect the rights of citizens and noncitizens equally because it enjoys a de facto monopoly over the enforcement of rights within its territory.”
Wyatt stated that “due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person may be deprived of liberty or property.”
Massaro and Sullivan stated that “when an alien has entered the United States, even though illegal means, he may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”
The Court stated that in Plyler that “use of the phrase ‘within its jurisdiction’ confirms the understanding that the fourteenth amendment’s protection extends to anyone, citizen or stranger who is subject to the laws of the state, and reaches into every corner of a state’s territory.”
Under Yick Wo v. Hopkins , the plaintiff who was a Chinese national who resided in San Francisco, California since 1861 challenged a local regulation which sought to prohibit laundry businesses in the specific way that Chinese residents usually were involved in. The local norm was considered by the Court unlawfully and discriminatory. The Court stated that such local ordinance violated Yick’s constitutional rights under the Fourteenth Amendment denying him his rights under the Equal Protection clause.
The Court stated: “The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” (Italics added).
Under Wing, the Court stated that “These provisious are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws. ‘ Applying this reasoning to the fifth and sixth
amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”
DACA recipients have been in the country since their first years of life. Many of them do not have any lively memory of their lives in their parents’ country. Many of them would be totally lost in a foreign and strange country if they would be deported from the United States. Affiliated-based and jurisdictional approaches are a proof that they have strong ties to this country and they should be treated as any other regular American citizen in a immigration trial. It is important to define a political agenda for those young people, and give them legal status.