On August 31, 1962, a sixty-three-year-old Cuban citizen named Pedro Víctor García boarded a Pan American Airways flight to Miami without a valid visa. After he landed, immigration police detained him. They could have deported Victor back to Havana immediately, but, for reasons that are unclear, they allowed him to stay, and to plead his case. Eventually, he became a legal resident of the United States.
Half a century later, on June 15th, President Barack Obama announced that he had given his approval for the Department of Homeland Security to use its “prosecutorial discretion” to stop deporting certain young, law-abiding undocumented immigrants, a decision greeted with joy and relief by many of the hundreds of thousands who will benefit. Senator Marco Rubio, of Florida, a Tea Party favorite and an up-and-coming star of the Republican Party—and Pedro Víctor’s grandson—denounced Obama’s plan. Rubio, who has often spoken out forcefully against illegal immigration, criticized the President for overstepping his authority and playing politics “by edict, by fiat . . . to coincide with the November election.” Last week, Rubio was promoting his new memoir, “An American Son.” In the book, he praises his grandfather as an “insistent individualist, who made his own way in the world.” Rubio doesn’t discuss Pedro Víctor’s interlude as an illegal immigrant, however, or the police discretion that aided him; that history came to light only because of the reporting of Manuel Roig-Franzia, of the Washington Post, whose book “The Rise of Marco Rubio” also came out this month. (Rubio said that he did not know of his grandfather’s circumstances until Roig-Franzia uncovered them.)
There is no shame in Pedro Víctor’s story, of course; it merely illustrates, with a relatively happy example, the arbitrariness of America’s immigration system. The shame lies in how the Republican Party—and leaders like Rubio—offers only empty gestures toward compromise with the Administration to fix that system, and has instead adopted a xenophobic platform that gives priority to security crackdowns and rollbacks of immigrants’ rights.
Under Obama’s plan, illegal immigrants under the age of thirty who were brought to the United States as children and have certain other qualifications, such as a high-school diploma and a clean police record, can apply for work permits and the right to live free from the fear of arrest. The decision is no Emancipation Proclamation, but it has some of that document’s transformational quality: there are few moments when a President, with a single act, can immediately uplift and legitimatize the lives of so many.
Like Obama’s declaration of support for gay marriage, the new system is intended to fire up a section of the Democratic base; in November, the outcome in swing states such as Colorado and Nevada may depend on the participation of Latino voters. But that is not in itself evidence of cynicism. If a President advances civil rights because those rights are popular and might excite voters, he affirms democracy’s credibility. The problem is that Obama’s plan leaves a vast number of law-abiding but undocumented residents in the shadows.
The plan protects, conditionally, the children of illegal immigrants because they are seen as a unique group of innocents. Plyler v. Doe, a 1982 Supreme Court decision, established this reasoning as a foundation for law and public policy. The Court overturned a Texas statute that effectively barred children who lacked proof of legal status from attending public schools. Justice William Brennan, writing for a 5-4 majority, described illegal minors as “special members of this underclass.” He continued:
Those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated.
Brennan’s principle inspired the DREAM Act, which is shorthand for a series of immigration reforms that have come before Congress since 2001, often with bipartisan support. These proposals build on Plyler’s ideas: the children of illegal immigrants are innocent, and so the most achievement-oriented and compliant among them deserve rewards, including citizenship. Several times, a DREAM Act bill has come close to passing in Congress, but none has ever been enacted; the latest version died more than a year ago, evidently prompting Obama to issue his plan.
The trouble with “dreamer” thinking is that it gives credence to the notion that the best way to address America’s eleven million undocumented immigrants is through a prism of law and order. The same reasoning that presumes innocent children also presumes guilty parents. There are criminals among the undocumented, but most migrants came here to work, and, in many important respects, the United States invited and tolerated their activity.
Migrants often took the kinds of jobs—in chicken slaughterhouses and fish canneries—that Americans did not want, for wages they would not accept. And business owners and agricultural interests frequently recruited migrants for this work. As recently as 2004, after a period in which immigration officials concentrated heavily on terrorism threats, enforcement of immigration laws against American business owners—as opposed to against individual migrants crossing the border—was almost nonexistent. To criminalize those who responded to this ambiguous employment opportunity is irrational and inconsonant with American history.
The solution has been apparent for years: Congress needs to establish a legal, temporary-work program, legalize the law-abiding undocumented workers who are already here, and link that amnesty to sustainable enforcement measures for businesses and at the border. Both George W. Bush and Barack Obama have sought such a grand bargain in Congress; both have failed. Pandering allies of the Tea Party, such as Rubio, foiled the latest effort.
As a stopgap, Obama’s plan employs prosecutorial discretion, which is a lawyer’s way of describing fairness and common sense. But the modest gains established by Plyler cannot be taken for granted. State legislatures are again enacting laws to expand police powers and reduce discretion, as part of a campaign to return the issues settled in the Plyler decision to a more conservative Supreme Court. Alabama recently passed a law that included a requirement for schools to ascertain the legal status of their students; even though that part of the statute was suspended, pending court review, enrollment of Latino children in public schools plummeted. At risk is the very basis of social mobility—education—that Rubio and other self-made conservatives cite as a linchpin of their achievements.
Radical nativism is turning America’s foundational narrative into a wedge issue, and Republican leaders are going along, unwilling to challenge their base’s dislocated anger. They are undermining national cohesion in ways large and small. Almost all immigrant success stories involve serendipity and empathy from those who arrived earlier. Sometimes the stories turn on the restraint of local police officers. That seems to be the import of Pedro Víctor García’s experience, if only his grandson—and his grandson’s party—could discern it.