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The Summer of Immigration Hopes and Dream(er)s

Jul 09, 2012

Do the recent “Dreamers” and Arizona legal developments signal the high-water mark for the anti-immigration movement?

Erich Straub   CopyBy Erich Straub, attorney

Just as the summer heated up, immigration law got hot as well, with two significant legal developments.

First, President Obama announced that a class of undocumented immigrants, commonly known as “Dreamers,” would qualify for certain benefits under a program known as deferred action. Second, the U.S. Supreme Court rejected most of Arizona’s controversial law known as S.B. 1070, which authorized state enforcement of immigration laws and had inspired copycat laws in many other states.

Although these developments do not provide a direct solution to the immigrant labor crisis in dairy, they are important changes in immigration law that dairy producers should understand.

“Dreamers” are young people who are undocumented and were brought to the U.S. by their parents, usually at a very young age. Many have little familiarity with their country of birth and have been educated in the U.S. for most of their lives. In most cases, they look, sound and act “American” but for the fact that they do not have status. Because most had little or no choice in coming to the U.S., they have garnered a significant amount of sympathy in the otherwise vitriolic debate over immigration reform. The DREAM Act, which would provide most of them with a pathway to permanent residence and U.S. citizenship, has long had majority support in Congress but has fallen victim to the 60-vote threshold required to move any legislation through the Senate.

In his June 15, 2012 announcement, President Obama extended “deferred action” to Dreamers. Deferred action is an exercise of prosecutorial discretion whereby the government chooses not to pursue a course of legal action. Stated more plainly, the government in this situation has decided to allow Dreamers to live and work in the U.S., even though they could otherwise be deported. For those who qualify, deferred action would provide work authorization, a Social Security number and likely a driver’s license.

Dreamers can be as old as 30 and still qualify, so it is possible that there may be dairy workers who are eligible for deferred action, so long as they arrived in the U.S. prior to the age of 16 and have a high school diploma or a G.E.D. It is important to understand that President Obama used his executive powers in ordering deferred action, so it is only a temporary solution. A pathway to permanent residence and citizenship will still require Congress to act.

On June 25, 2012, a second major immigration change occurred when the Supreme Court struck down most of Arizona’s S.B. 1070. The Court concluded Arizona law was “preempted” by federal law. In other words, it was illegal for Arizona to create a state enforcement scheme in an area that long-standing constitutional precedent has reserved for the federal government.

The ruling was mixed, however, because the Court did not invalidate the part of the law that requires state police officers to check the immigration status of a person already in their custody if there is “reasonable suspicion” that the person is in the U.S. unlawfully. The Court left open the possibility of invalidating this remaining provision if there is future evidence that Arizona is implementing it in a way that demonstrates racial profiling.

Reversal of most of the Arizona law is likely to have several effects that may be helpful to dairy. Beyond Arizona, the Court’s decision is likely to invalidate many of the laws in copycat states. Doubts about the wisdom of the Arizona approach had already grown in states such as Georgia and Alabama, where crippling agricultural labor shortages resulted from Arizona-style laws. Coupled with these concerns, the Court’s decision likely deals a serious blow to the immigration “state’s rights” movement.

Of course, neither development solves dairy’s ultimate problem, which is the need for an efficient and reliable visa to match immigrant labor with rural labor needs. Reading the political tea leaves is always risky, but hopefully these two developments signal the high-water mark for the anti-immigration movement. Unfortunately, only this fall’s election will show how much progress has been made towards eliminating that all-important 60-vote obstacle. 

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