Are We Facing the End of DACA?
The Trump administration is working to end deportation protections for young undocumented immigrants. The administration’s efforts to rescind the Deferred Action for Childhood Arrivals (DACA) program have come to a head in a legal battle before the Supreme Court. The Court heard oral arguments on the related DACA matters on November 12, 2019, and the tenor of the Justices’ questions has some scholars anticipating that the Court’s conservative majority will side with the federal government and permit it to shut down the program protecting around 700,000 young undocumented immigrants known as Dreamers.
What is DACA?
DACA is an Obama-era program that protects eligible immigrant youth who were brought to the United States when they were children, shielding them from deportation and granting them work permits. DACA status lasts two years and can be renewed, but the program does not provide a path to citizenship. DACA recipients are often referred to as “Dreamers,” a term that comes from a failed piece of legislation known as the DREAM Act, which would have given young immigrants more permanent protections.
In order to be eligible for DACA, the applicant must satisfy certain conditions, including the following: The applicant was under age 31 as of June 15, 2012; the applicant has had continued physical residence in the U.S.; the applicant came to the U.S. before turning 16 without documents or with documents that expired before June 2012; the applicant graduated from high school or completed military service; and the applicant has never been convicted of a felony, certain misdemeanors, or three misdemeanors of any kind.
The Supreme Court Case
The case turns on whether the Department of Homeland Security (DHS), under the direction of then-Attorney General Jeff Sessions, acted arbitrarily and without reason when it chose to unilaterally end the DACA program. The plaintiffs in the case argue that DHS essentially ended DACA via a one-sentence declaration that the program was illegal without providing proper evidence and legal reasoning. Federal agencies are required to back up their decision-making with proper support, particularly when such a decision abruptly ends a program depended upon in good faith by hundreds of thousands of people.
The administration, in turn, argues that it provided sufficient reasoning to end a program that it deemed illegal and that it was within its rights to do so. Moreover, the administration argues that federal courts lack the authority to review the executive’s decision to end DACA. If the administration chose to wind down DACA on policy grounds, they argue, then the courts are overstepping by evaluating essentially political, rather than legal, matters.
The Administration’s Plans and the Implications for Dreamers
Since its inception, DACA has protected more than 820,000 immigrants from deportation. There are currently more than 700,000 Dreamers enrolled in the program. They benefit from protection from deportation and the ability to work legally in the U.S., but DACA status lasts only two years, and members must continually re-enroll.
Current DACA recipients and people who were formerly enrolled in DACA can continue to apply for renewal pending the Supreme Court’s determination, but USCIS is not accepting any new applications. DACA recipients whose status has already expired can also apply for a renewal at this time.
DACA recipients were advised in 2018 by USCIS that they should file for renewal 120 to 150 days before expiration to keep their protection while the case works its way through the courts and avoid losing status while the administrative process is pending. DACA recipients should consult an immigration attorney before applying for renewal to ensure that they are not harming themselves by applying so far in advance (for example, should the “new” work permit and protected status kick in before the “old” status ends, recipients may end up with less than two years of additional DACA status).
If the Trump administration succeeds in ending DACA, then anyone currently in the program will lose their protected status at the end of their two-year period. The administration is not only preventing new DACA applicants; they intend to end renewals so that the program ends in its entirety. So, current DACA recipients will not be allowed to renew at the time of their expiration should the administration prevail. Those with expired DACA status will no longer be able to work in the country legally and will not benefit from protected status if they face deportation. They will simply revert to undocumented status. DACA recipients may then go to court and seek to stop or delay removal on other legal grounds, but they will face the possibility of deportation.
Pro-immigration activists note that nearly 90 percent of DACA recipients were employed according to a 2018 survey, suggesting that the end of DACA may have a significant impact on the economy. Former DACA recipients may lose their driver’s licenses, depending on the state, and they may become ineligible for in-state rates for higher education or may simply be banned from public universities in certain states.
The President has waffled as to what will happen to immigrants currently enrolled in DACA if the program should end. He has, at times, claimed that he would work with Democrats to create protections for current DACA recipients rather than call for their immediate deportation. Immigration hard-liners on the political right, however, do not want to extend any protection for current DACA recipients, and it is far from clear that President Trump would go against their wishes.
Notably, the Supreme Court’s decision could have a significant impact on future deportation relief programs, depending on how they rule. If the Court rules in favor of the administration by finding that the government gave sufficient policy justification for ending DACA (such that courts should not even be reviewing the decision), then future administrations could simply revive the program or something similar. If the Court decides that the legality of DACA is at issue, however, and sides with the government on the legal argument, then the Court would be declaring DACA (and potential future similar programs) illegal. Immigration rights activists fear this outcome the most.
