DACA, John Lennon & Obama

Beatles legend, John Lennon, helped to shed light on the government's policy on deferred action and paved the way to DACA. DACA is a program initiated by President Obama that temporarily protects young people, commonly known as Dreamers, from deportation. In this episode we discuss why deferred action has been a critical part of U.S. immigration policy. We also speak to two Dreamers who have benefited from DACA, including one who was the first person to use the "Morton Memo" to halt her deportation. 

Transcript

DACA, John Lennon & Obama

Mandeep Chahal (“Mandeep”):  I wouldn’t be able to get that job at jamba juice; that I was undocumented; and that actually a lot of things that I was about to face would be pretty difficult, because I didn’t have papers, which is how they put it.

Anuoluwapo Opanagu (“Anu”):  When I was planning to go to College, is when I first realized that I was undocumentd. I didn’t have a social security number; I couldn’t get financial aid. 

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Tejas Shah (“Tejas”): Hello everybody - welcome back to immigration chats with Tejas and Kalpana. My name is Tejas Shah and both my co-host, Kalpana Peddibhotla and I, are U.S. immigration lawyers. This podcast focuses on simplifying U.S. immigration. Our first two episodes have focused on Presidential power over U.S. immigration.

Kalpana V. Peddibhotla (“Kalpana”): In this episode, we continue speaking about Presidential power and focus on one of the biggest issues in immigration - deferred action, which is linked to prosecutorial discretion. Many of our listeners are likely to be familiar with DACA, a program that has often been in the news (and was an important election issue) since it was created by the Obama Administration in 2012. In this episode, we’ll examine the historical underpinnings of deferred action, which is the basis for the DACA program.

To begin with, it would be helpful to explain what DACA is.

Tejas: So DACA is a program that President Obama created in 2012 with the goal of halting the deportation of young people who entered the U.S. as children and were undocumented. They are commonly known as “DREAMERS”. 

Kalpana:  President Obama took this executive action because Congress had failed to provide permanent relief through the DREAM Act, despite the bipartisan support for it. Here is President Obama announcing the DACA program in June 2012. 

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President Obama’s Announcement:

This morning, Secretary Napolitano announced new actions my administration will take to mend our nation's immigration policy to make it more fair, more efficient, and more just specifically for certain young people, sometimes called Dreamers. 

Now, these are young people who study in our schools, they play in our neighborhoods, they're friends, with our kids, they pledge allegiance to our flag. They are Americans in their heart and their minds in every single way, but one on paper. They were brought to this country, by their parents, sometimes even as infants, and often have no idea that they're undocumented until they apply for a job, or a driver's license, or a college scholarship. 

Put yourself in their shoes. Imagine you've done everything right, your entire life- studied hard, worked hard, maybe even graduated at the top of your class - only to suddenly face the threat of deportation to a country that you know nothing about with a language that you may not even speak. That's what gave rise to the DREAM Act. It says that if your parents brought you here as a child, you've been here for five years and you're willing to go to college, or serve in our military. You can one day earn your citizenship. And I've said time and time and time again to Congress that send me the DREAM Act, put it on my desk and I will sign it right away. 

Effective immediately, the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization. 

Now, let's be clear, this is not amnesty. This is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.

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Tejas:  Since DACA was first created, approximately three quarter million individuals have benefited from the program by becoming doctors, lawyers, engineers, graduating from college or high school, and otherwise becoming productive members of society. One of these individuals is a gentleman named Anuoluwapo Opanagu, a Nigerian citizen. 

Interview with Anuoluwapo Opanagu:

Anu:  My name is Anu Opanagu. I am a Nigerian born citizen. I moved to the United States around the age of 11. I remember starting in the 5th grade when I came to the U.S. 

I grew up on the northside of Chicago. With me in the U.S. are my parents and threesiblings. All of whom are documented, except for me. 

Tejas:  What was it like for you growing up in the US as a child? Did you think about your immigration status?

Anu:  It was actually pretty nice. I went to an IB school, there weren't very many immigrants, or for that matter of minorities. But I felt very welcomed. I didn't really think about my immigration status until I was ready to go to college.

Tejas:  So when did you finally think about your immigration status?

Anu:  Well, when I was planning to go to college was the first time I understood that I was undocumented. I didn't have a social security number. I couldn't get financial aid. I had no papers.

Tejas:  How did this information affect your college experience?

Anu:  When I finally became more aware of my status, I had to rethink my college choices. I wasn't going to be able to get financial aid. And so I went to Chicago State on the Southside of Chicago, instead of pursuing other choices I originally had. I was able to get scholarships. And so Chicago State made the best sense at the time,

Tejas:  Did your immigration status cause you to worry about the future? 

Anu: I probably was worried. But looking back, I was more focused on excelling in my studies. I was raised in a Christian home, and told just control what you can control and have a level of faith. And so while I knew in the back of my mind that man, I could come out of school and not be able to get the job because of my immigration status. I also knew that I needed to do well in school, so that if my immigration status were to change, I needed credentials to show that I was qualified for anything I wanted to do after that.

Tejas:  So, at that point in time, were you connected to a larger community of undocumented individuals in the US? 

Anu:  Absolutely not. At that point, it was actually hush hush about it. Don't tell anyone just kind of keep your head down and get things done. I had no clue there were other kids like me, you know, I thought I was kind of on an island by myself. I felt a bit embarrassed about it. My friends were getting jobs, new opportunities. I didn't want to bring attention to myself or feel like I had to explain all of this.

Tejas:  Did you apply for DACA as soon as the program was announced?

Anu:  I applied right away.

Tejas: So, what does having DACA mean to you?

Anu:  A lot; it's given me an opportunity to truly have a shot at the American dream. And you know, that may sound cliche or whatever, but that's my reality. My parents, my family, my community had supported me and really invested in me, and DACA gave me a way to put that investment to work. I remember, you know, when I got the confirmation, I called my mom, it was around my birthday, late December of 2012. I had one more semester of undergrad, and I called my mom and I told her mom, the work authorization came in, and I can finally put my GPA to work. And, you know, she laughed, and she prayed, and she was just so relieved. DACA has allowed me to really earn a living, to support causes that I care about in my community, and really, to have a voice in the United States of America. Despite the challenges I've faced, the United States has taught me and kind of made me who I am today.

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Tejas: So notwithstanding Anu’s comments, DACA is NOT a legal status, since only Congress can create legal status. DACA is simply the government’s decision to exclude an individual from deportation proceedings and provide temporary work authorization. 

Think of this as the government acting as a prosecutor and deciding whom to charge and not to charge. DACA also extends a concept that has existed in U.S. immigration law for many years - deferred action.

Kalpana:  So Tejas, most people may be surprised to learn that one of the first known use of deferred action was Beatle legend John Lennon. He was represented by an attorney named Leon Wildes. This was a volatile time in American history. John Lennon was an opponent of the Vietnam War, and President Richard Nixon was not a fan of such a high profile dissenter. Our government used an old marijuana conviction as an excuse to deport John Lennon. 

I asked professor Shobha Wadhia, a well-known professor at University of Penn Law School and a national authority on deferred action and prosecutorial discretion to provide some background on this situation. 

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Interview with Professor Shobha Wadhia:

Kalpana:  Professor Wadhia thank you for joining us for this podcast. You have written the seminal book on deferred action titled, Beyond Deportation. 

In your book you link the history of DACA and Deferred Action to the case of Beatles musician John Lennon. I’m sure most people would unlikely know of John Lennon’s immigration battles to remain in the U.S.  And how his case unearthed a private immigration policy of prosecutorial discretion. Can you tell us a little bit about the evolution of the John Lennon case and how his attorney pursued this alternative remedy?

Prof Wadhia:  Sure and his attorney, Leon Wildes, also wrote the forward to my book, Beyond Deportation. 

And he was in a lawsuit with the federal government for many years demanding policy or at least case files on people who had been processed for and granted deferred action, then called non priority status at the time. And the genesis of the case itself was that Yoko Ono and John Lennon were in the United States. And they were in search of Yoko Ono's child, and were seeking extensions on their tourist visas. And fast forward, John Lennon was placed in deportation proceedings based on an old marijuana conviction. And one strategy that his attorney had was to seek this non priority status or deferred action.  

And the theory really behind prosecutorial discretion during the John Lennon era, and now are quite the same, where the government has limited resources. So choices have to be made about who you're going to target for enforcement, and who you're going to leave on the back burner. And so the argument by Leon Wildes was that here's someone who should be a low priority for immigration enforcement. And we know that the agency has a history and practice of doing this and INS denied it articulated that there was no such policy. 

But ultimately, Leon Wildes was able to through FOIA litigation Freedom of Information Act litigation, uncover over 1800 case files of individuals who had been processed for deferred action, and use that as a baseline for requesting the same for John Lennon.

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Kalpana:  Professor Wadhia went on to share with me that after the John Lennon case, the government finally began issuing formal guidance and agency memos on when to exercise prosecutorial discretion. These policies against deportation were largely based on humanitarian considerations. Despite these policies, deferred action was still applied in a haphazard manner and was often left to the judgment of individual ICE agents and government attorneys. This all changed during President Obama’s 2nd term in office. 

Tejas:  Yes, that’s right, In 2011, the Director of ICE under President Barack Obama, John Morton, issued a memo on prosecutorial discretion. Now known as “the Morton Memo”, it seemed to acknowledge what had been obvious for so long - the U.S. doesn’t have the resources to deport every single individual who is currently in the country without a valid legal status, nor is it good policy to do so. This Memo outlined priorities for deportation and also outlined priorities for deferred action.

Kalpana: I again spoke with Professor Wadhia about the Morton Memo. 

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Interview with Professor Shobha Wadhia:

Kalpana:  Professor Wadhia, as we were setting up this Podcast, I discovered that one thing that we had in common was my client Mandeep Chahal.  

Mandeep was a young dreamer who was brought to the US by her mother at the age of six. And her case is the first publicly documented use of the Morton memo.

The Morton memo came out on Friday, June 17 2011. At the time, Mandeep was in my office with her best friend from high school as we were determining our next steps which included setting up a public campaign to prevent her deportation. 

She was scheduled to be deported on Tuesday, June 21. And over that weekend, Mandeep and her friend launched this massive national campaign, which resulted in thousands of people faxing in and calling their congressional representatives. 

So I filed a request for prosecutorial discretion the following Monday using the Morton memo, and I also followed emergency stay with the Board of Immigration Appeals. And unfortunately, when that appeal was denied, I started driving to San Francisco on Tuesday morning to file an appeal within the Ninth Circuit. 

And literally en route I received a phone call from the chief counsel for ICE San Francisco telling me that they were halting the deportation of Mandeep and her mother, largely due to the Morton memo.

Mandeep’s story was eventually told on the Senate floor during its first hearing on the DREAM Act. 

You cited Mandeep in your book in discussing the limitations of the Morton memo. 

Can you describe why young dreamers like Mandeep felt that the Morton memo wasn't enough?

Prof. Wadhia:  That's a great story. And just congratulations to you and your client. I think that, you know, part of the criticism around the Morton memo and, and one that I don't know has been nurtured to it. And today, is the interaction between criminality or someone who might have a history of civil immigration violations and who deserves to be protected. So it's this broader conversation about the narrative between, you know, who is a good immigrant or someone worthy of protection? And who is the bad immigrant? And what role does criminality play? But I think also for dreamers, the Morton memo was insufficient in so far that, yes, there was a factor that coming to the United States at a young age would be one of the factors considered for positive prosecutorial discretion. But it did not provide the kind of guarantee or consistency rather, that anyone who came for example, at a young age with a profile like your client, would somehow be protected.

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Kalpana:  I was also able to catch up with my former client, Mandeep Chahal, to get her perspective.
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Interview with Mandeep Chahal

Kalpana:  Hi Mandeep thanks so much for joining me. 

Mandeep:  Thanks so much for having me.

Kalpana:  So Mandeep, when did you first learn that you were undocumented?

Mandeep:  Well, when I was 16, I wanted to get a job at Jamba Juice, with my best friend from high school at the time. And when I told my parents this plan, they finally had to sit me down and explain that I wouldn't be able to get that job at Jamba Juice that I wasn't documented. And that actually a lot of things that I was about to face would be pretty difficult because I didn't have papers, which is how they put it.

Kalpana:  Mandeep, do you mind if I ask how you felt upon learning that you were undocumented?

Mandeep:  To be honest, I really just put that information away. No, I was in high school, I decided I would really dedicate myself to to school and my extracurricular activities and honestly tried not to think about it and thought that it would go away.

Kalpana:  Mandeep, your case is the first documented use of the Morton Memo on Deferred Action. What was it like to find out that the Morton Memo might apply to your case?

Mandeep:  It felt like everything up to that point had been kind of us just throwing all of the information that we could gather about why my mom and I deserve to stay in the US at the government and that it really none of it was landing, none of it was sticking the story didn't matter. All they cared about was the cold hard facts of the case. And then when this came out, kind of specifically highlighting that people who came here when they were young people who were pursuing an education etc. deserved a second look, it felt like maybe this was something concrete that would actually stick. And it was kind of this last ditch effort. It was the weekend before I was supposed to board a plane. We already had the plane ticket. I had already patched. And so yeah, I mean, it kind of felt like this Hail Mary.

Kalpana:  What happened after you were granted Deferred Action? Did Deferred Action actually legalize your status?

Mandeep:  I was granted Deferred Action for one year and right before it expired DACA came out also on a Friday afternoon in June, after I was given DACA I actually after a few renewals, I ended up getting my green card through a slightly different process. My high school sweetheart proposed and we got married. And that's kind of what has led me to today. I do have my green card and actually just applied for citizenship.

Kalpana:  That’s amazing. Congratulations on applying for Citizenship! I’m so excited for you. 

Mandeep:  Thank you. It's been a long, long road. As you know,

Kalpana: Given your experience with Deferred Action through the Morton Memo and DACA, do you have any concerns about these policies? 

Mandeep:  Well, I think the important memo and other policies like it are band aids. You know, our immigration system has not kept up with the times. It needs to be able to absorb complex cases like mine. The Morton Memo and other policies like it are just a band aid on a system that's really broken and that needs a comprehensive overhaul. Immigrants shouldn't have to work this hard to contribute to a country that they love and want to live in.

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Kalpana:  Unfortunately, despite the widespread support for Dreamers like Mandeep and Anu, DACA has been another victim of U.S. partisan politics. For example, President Obama’s attempt to expand the program in 2014 to include the parents of Dreamers was blocked in court. And the Trump administration’s attempt to end DACA in 2017 was challenged in court. 

Tejas:  Most recently, in the summer of 2020, the U.S. Supreme Court sided with a lower court in blocking the Trump administration from ending the DACA program based on the executive branch’s failure to follow certain procedures that would account for the reliance interests of DACA recipients under federal law.

I wanted to understand what “reliance” felt like for Anuolowapu, and asked him for his reaction to the Supreme Court’s decision.

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Interview with Anuoluwapo Opanagu

Anu:  And I think for me, that's one of the things that I really love about this country, is that it's okay to open the debate. It's okay to have these dialogues. Um, and, you know, there's a process in place. We both know that, you know, the the current administration took this all the way to the Supreme Court, and, you know, decision was made, regardless of the reason why the decision was made. I think that decision speaks a lot about this country. And, you know, as I mentioned earlier, what I've been given so far, what I've been afforded so far by this country, are things that cannot be taken away from me. And for that, I'm grateful.

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Mandeep:  One thing that I was going to say is that this has shown me how creative immigration law actually can be. And that, yeah, even when it looks like there's not a path forward for something that's really a complex and hairy and tricky, complicated case that there are immigration attorneys who are kind of willing to forge a path where there isn't one and to find creative and rigorous applications of the law that benefit their clients. And I think that that's really powerful, right, because I wouldn't be here if you hadn't been willing to do that. And so that's one thing that this has definitely showed me how creative you can be within the bounds of immigration law.

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