On September 5, 2017, U.S. Attorney General Jeff Sessions announced the Trump administration’s decision to make good on a campaign promise to end the Deferred Action for Childhood Arrivals (DACA) program, throwing hundreds of thousands of young immigrants’ lives into chaos and passing the hot potato of potential immigration reform back to Congress.
Created by President Obama in 2012, DACA allowed young noncitizens who had been physically present in the U.S. since at least June 2007, who were enrolled in or had graduated from high school or served in the U.S. Armed Forces, and who did not have significant criminal histories or pose a threat to national security, to obtain work authorization and a reprieve from potential deportation for two years. Before last month, DACA recipients could apply to renew their DACA and work permits. However, as of September 5, only those individuals who had previously been granted DACA and whose current work permits were set to expire before March 5, 2018, were eligible to apply for renewal, and only if their renewal applications were received by U.S. Citizenship and Immigration Services (USCIS) before October 5. No new initial applications would be accepted, and anyone whose work permits had expired before September 5 or would expire after next March 5 were out of luck.
In his speech, Sessions repeated many falsehoods used to challenge DACA over the years. He called DACA a legal “status,” which simply is not true (even though that point may have confused some of the Supreme Court Justices last year). He asserted that the DACA program led to the “surge” in unaccompanied minors crossing the U.S.-Mexico border in recent years, when multiple studies have shown that increasing numbers of minors began arriving in the U.S. well before DACA was introduced – not to mention that children entering the U.S. after 2007 are not actually eligible for DACA. In the many years I have been working with thousands of unaccompanied children throughout the country, not a single one has ever mentioned DACA or any other U.S. law or policy as a reason for making the long, dangerous journey to the U.S. alone; rather, they consistently cite gang violence, parental abuse/neglect, poverty, and/or desire to reunify with family in the U.S. as their reasons for migrating.
Sessions also claimed that DACA recipients have stolen jobs from American workers, even though multiple studies have demonstrated that immigrants are not taking Americans’ jobs. (In fact, there is evidence indicating that the rescission of the DACA program will lead to significant costs to the U.S. economy and government.) He also declared that programs like DACA have “put our nation at risk of crime, violence, and even terrorism,” even though individuals with criminal histories or who present national security concerns are not actually eligible for DACA, and immigrants in fact commit fewer crimes than U.S.-born citizens.[i]
Perhaps more reasonably, Sessions also stated that DACA was being rescinded “in light of imminent litigation,” presumably referring to the letter sent to him by eleven Republican state officials[ii] in June, threatening to sue the administration if the program was not ended by September 5. But even this rationalization does not hold up to further scrutiny.
First, the state officials’ letter asserted that the original 2012 DACA program was vulnerable to the same legal challenges that effectively ended Obama’s 2014 proposed programs, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of DACA (sometimes referred to as “DACA+”). But the truth of that assertion is far from clear. The court decisions regarding the 2014 programs always clearly distinguished between those programs and the original DACA program, and even the Supreme Court split 4-4 on whether the 2014 programs were legal. Additionally, at least two lawsuits that challenged original DACA were both dismissed. This may have been in part because the original program was introduced through a formal notice-and-comment procedure, whereas the 2014 programs were not – and some have argued that the Trump administration’s decision to end the original DACA program without going through the same notice-and-comment procedure through which it was introduced in fact makes it more, not less, susceptible to legal challenge, contrary to Sessions’s arguments.
And in the last month and a half, there have already been multiple lawsuits filed around the country to fight against the rescission of DACA. A number of states are suing the administration in New York[iii] and in California[iv], asking federal courts to enjoin the administration from ending DACA and from using information previously collected by the federal government through individuals’ DACA applications for immigration enforcement purposes. The NAACP has filed suit on behalf of DACA beneficiaries of color, and the University of California, currently led by President Janet Napolitano, Obama’s Secretary of Homeland Security who signed the memorandum introducing DACA in 2012, has also challenged the rescission of DACA. Additionally, a group of six DACA beneficiaries are suing the administration as well, led by Dulce Garcia, an immigration attorney herself. These lawsuits all typically make the same types of allegations – that rescinding the program in such an arbitrary and abrupt way violates the federal Administrative Procedure Act; that suddenly stripping people of benefits previously granted to them violates the Due Process Clause of the Constitution’s Fifth Amendment; and that, given Trump and his administration’s derogatory comments about immigrants and foreigners both on the campaign trail and since taking office, the rescission of DACA discriminates on the basis of national origin, in violation of the Fifth Amendment’s Equal Protection Clause. While the outcome of these lawsuits remains to be seen, it is clear that Sessions’s supposed attempt to avoid litigation has failed miserably.
In the meantime, the administration has punted to Congress to figure out what to do. In his speech, Sessions indicated that the six-month DACA “wind down process” would “create a time period for Congress to act – should it so choose.” Trump himself seemed to want Congress to pass legislation determining the fate of DACA beneficiaries, tweeting on the morning of Sessions’s announcement that Congress should “get ready to do your job – DACA!”
But Trump’s DACA messaging has been rather inconsistent in the past. When announcing his candidacy for the presidency in 2015, he threatened to “immediately terminate President Obama’s illegal executive order on immigration, immediately.” He avoided directly answering whether DACA beneficiaries would be allowed to remain in the U.S. in an interview just after the inauguration, instead saying that he was “looking at it with great heart,” a sentiment he echoed in a press conference the following month during which he called DACA “a very, very difficult subject for me” but again declined to provide any specifics for the administration’s plans for the program. Just days later, when the Department of Homeland Security (DHS) released a memorandum outlining the administration’s immigration enforcement priorities, it rescinded all prior DHS memoranda and guidance except the 2012 memo introducing DACA. Yet the program was still terminated on September 5.
Shortly thereafter, Trump seemed inclined to engage with Congressional leaders on the issue, as Democratic Senators Chuck Schumer and Nancy Pelosi declared that the President was willing to support proposed legislation to enshrine DACA’s protections into law without simultaneously demanding funding to build his infamous border wall. But the administration quickly contradicted that claim. And this month, the White House released its “Immigration Principles and Policies,” a seven-page document that includes such objectionable demands as stripping protections from unaccompanied minors and asylum-seekers, cracking down on sanctuary cities, implementing a merit-based immigration system (which many believe would be a “grave mistake”), and guaranteeing full funding for the border wall, among others.[v] The document has been widely decried as a way for the White House to sabotage the DACA legislation negotiations.
So the prospects of Congress successfully finding a long-term solution to the DACA problem remain uncertain for now. Over the last several years, many proposed bills, including the DREAM (Development, Relief, and Education for Alien Minors) Act from which so-called “DREAMers” take their name, have been introduced in both the House of Representatives and the Senate. Some merely preserve the status quo and maintain the same requirements and benefits provided through Obama’s 2012 executive action, while others introduce slightly different requirements and/or put beneficiaries on a path towards lawful permanent resident status and, eventually, U.S. citizenship. At least some Republican members of Congress seem to want to take legislative action to protect DACA beneficiaries, and the American public on both sides of the political spectrum opposes deporting them as well.
But a deal seems highly unlikely if Trump insists on including many or all of the White House’s “priorities” into any new law. Advocates and DACA beneficiaries themselves are pushing for a “clean” bill that does not trade their protection for the deportation of others, such as their own family members and friends, but no one knows what the future holds. All that is certain is that the countdown to March 5, 2018, has begun, with the lives and livelihoods of 800,000 young people hanging in the balance.
[i] For an excellent breakdown of all of Sessions’ misleading statements and outright lies during the DACA rescission speech, listen to the September 8 episode of the “Redirect: Immigration Law and Perspectives” podcast.
[ii] The states threatening litigation were Texas, Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, and West Virginia. However, Tennessee Attorney General Herbert Slatery III later wrote a letter to Tennessee Senators Lamar Alexander and Bob Corker, in which he withdrew his state’s support for the looming lawsuit and urged them and their colleagues in Congress to instead pass legislation protecting those previously granted DACA.
[iii] New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, DC, are the plaintiffs in New York v. Trump.
[iv] California, Maine, Maryland, and Minnesota are the plaintiffs in California v. U.S. Department of Homeland Security.