In Virgil's Aeneid, one of my favorite works, a group of Trojans who had survived the Greek destruction of their city set sail in order to find a new home in Italy. The poet describes their voyage as follows:
Vix e conspectu Siculae telluris in altum/vela dabant laeti et spuma salis aere ruebant. ("With Sicilian land just out of sight behind them, the joyful Trojans set their sails toward the sea, churning up the salty foam with the bronze prows of their ships".)
What is the result of this joyous voyage? A terrible storm at sea and shipwreck for most of the ships, brought on by a malevolent goddess.
But what does this have to do with today's DREAMERS, 2,000 years after the poem was written? They are not from Troy; America is not Ancient Italy, and there are no Greek or Roman gods around to interfere with their journey. Nor would I be rash enough to predict shipwreck for the great majority of DREAMERS who apply for deferred action; this would be far too pessimistic.
But a few caveats about the joyful voyage toward Deferred Action, which thousands of deserving young people began on Wednesday, August 15, are in order nevertheless.
Let's take a closer look at the DHS memo: Consideration of Deferred Action for Childhood Arrivals Process which implemented Deferred Action on August 15. At the outset, it it is important to bear in mind that this is only a memo, not an executive order, which at least sounds a little more substantial, though both can just as easily be overturned by the stroke of a presidential pen, or even phone call, as the Trojans' ships were by the gods in Virgil's epic.
Turning to the memo's definition of Deferred Action, we find the following:
"Deferred Action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion."
What stands out first is the word "discretionary". In other words, someone can be eligible for Deferred Action, i.e. meet all the requirements for applying with respect to age, school attendance or military service, period of presence in the US, lack of serious criminal record, etc., and still be denied as a matter of an individual USCIS officer's discretion.
No doubt, the preamble to the memo is reassuring to the effect that there are at least some general guidelines in place regarding how discretion should be exercised:
"As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals conviceted of crimes with particular emphasis on violent criminals, felons and repeat offenders DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines." (Italics added.)
"Prosecutorial Discretion". Yes, this is a nice phrase, and, arguably, the only legal justification for granting most DREAMERS even temporary relief from deportation. But haven't we heard this phrase somewhere before? Wasn't it in the famous John Morton ICE memo of June 17, 2011, which also promised relief from deportation?
And what is the percentage of applicants who have actually been granted relief from deportation in the exercise of prosecutorial discretion under the Morton memo? One advocacy group, Citizen Orange, puts the percentage of removal cases that have actually been administratively closed at 1.5 per cent. The Trojans had a much higher rate of sucess in making it through Virgil's storm. Seven out of twenty ships survived. To be continued.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years