The ups and downs of DACA

By Elisa Santana

On Tuesday, September 5, the Trump administration announced it would terminate the Deferred Action for Childhood Arrivals (DACA) Program. The executive branch will give Congress six months to pass permanent legislation to address DACA recipients, otherwise it will completely phase out the program Department of Homeland Security (DHS) would end the program.

The announcement and public’s response has made DACA a domestic and internationally known acronym.

What led to the creation of the Deferred Action for Childhood Arrivals program?

In the early 2000s, federal politicians were tasked with the issue: What should be done with people who were brought to the United States by their parents as children without legal permission, or sent alone as unaccompanied minors? The child may or may not have known while growing up in the United States that they were undocumented.

The DREAM Act (Development, Relief, and Education for Alien Minors) was first introduced in 2001 to address this issue. The idea was to give youth the opportunity to work legally and obtain higher education without the threat of deportation. Finally in 2010, after being reintroduced multiple times, the DREAM Act came to the U.S. House of Representatives floor for a vote, where it narrowly passed. Soon after its House passage, the DREAM Act failed in the U.S. Senate with a 55-41 vote. This is important because five Democrats at the time voted against the DREAM Act, while three Republicans voted for it.
While Congress and the American public went on with their day-to-day lives, undocumented youth and immigrant advocates waited for relief. 18 months after the failed vote, in June 2012, President Barack Obama announced the DACA program.
The DACA program provides undocumented youth the opportunity to have “deferred action from deportation”. It does not provide a pathway to citizenship, or as some opponents of the program have feared, “amnesty.” Amnesty, in this case, means a blanket pardon extended by the U.S. government where undocumented immigrants obtain citizenship.
It does allow DACA recipients to be considered a low priority for deportation, given their history in the United States and lack of a criminal record. DACA recipients are eligible for a work permit for two years, permitting they have a background check and meet other guidelines:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching their 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

DACA gave many individuals the confidence to speak out about their undocumented status. This concept was deemed as “coming out of the shadows.”

Each one of the 50 states and the District of Columbia have people who have been granted DACA, whose total comes to almost 1 million. Over 90% of DACA recipients are currently employed or in school.

Where do things stand on DACA right now?

Even though the State of Texas has the second highest number of DACA recipients (over 120,000), their state government has led the charge to dismantle DACA. On June 29, 2017, Texas Attorney General, Ken Paxton, along with nine other state attorneys general and the governor of Idaho, sent a letter to the Trump Administration, threatening to sue the executive branch if they did not make a choice to dismantle DACA by September 5, 2017. The letter stated that “DACA unilaterally confers eligibility for work authorization, id., and lawful presence without any statutory authorization from Congress.” U.S. Attorney General Jeff Sessions cited similar reasons in his September 5 letter to DHS.

The state of Texas cited their successful lawsuit against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Expanded DACA– noting the same lawyers who sued the Obama Administration, would sue Trump’s Administration. The DAPA case did make it to the U.S. Supreme Court, however, due to the death of Justice Antonin Scalia, the Supreme Court was tied 4-4. The tied decision left an appeals court’s decision in place, which blocked DAPA and Expanded DACA based on administrative law. The Supreme Court did not make any opinions on presidential power, or unconstitutionality.

The DACA program was established through an Executive Order. This means that President Trump can revoke, modify, or supersede any Executive Order of previous president.In addition, Texas and the other states may have had good reason to believe President Trump would be willing to do so.

On June 16, 2015, during one of his first campaign events, Trump said, “I will immediately terminate President Obama’s illegal executive order on immigration. Immediately.” More than a year later on August 31, 2016, Trump says to a crowd, “We will immediately terminate President Obama’s two illegal executive amnesties.” Trump campaigned on the promise to terminate the DACA program and appealed to voters who draw a hardline on immigration. The eleven states threatening to sue Trump over DACA are asking for him to fulfil the promise, which got him elected.

Once in office, Trump picked Senator Jeff Sessions as U.S. Attorney General. Sessions has a long history of voting and speaking out against pro-immigration measures. Remember the 2010 DREAM Act vote?– Sessions wrote a letter encouraging his fellow senators to vote against the bill. In his opinion, the DREAM Act rewarded illegal behavior and would give legal status to “gang members” and “aliens with misdemeanor convictions.”

On September 5, Sessions sent a letter to DHS and publicly announced that the Trump administration would phase out DACA. Trump gave Congress a deadline of six months to pass a permanent legislative solution for DACA. The announcement threw the U.S. into a frenzy, with many asking: How could the U.S. government continue to keep young people with undocumented status in limbo?

Congress has not been able to pass legislation on immigration in years, which is why the task ahead is so difficult. In the days after the announcement, President Trump has flip-flopped on the topic. After pledging to phase out DACA on September 5, he said he would revisit the issue if Congress could not pass legislation (September 6). Then in a turn of events, on September 14, Trump said he was working with Democrats on a plan for DACA. The GOP was caught off guard by Trump’s comments, with Speaker of the House Paul Ryan noting that Trump’s plan “’was a discussion, not an agreement.”

Currently, there is a 2017 version of the Dream Act pending in the U.S. Senate. Introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Jeff Flake (R-AZ), and Chuck Schumer (D-NY), the DREAM Act would provide a path to U.S. citizenship for DACA recipients. It is likely that Republicans will add border security measures to this bill for them to accept its passage.

As far as public opinion goes, a recent poll conducted by Politico shows that 54 percent of voters want Congress to establish a path to citizenship for DACA recipients.

For now, people who have received DACA must renew their application by October 5 if it expires between Sept. 5, 2017 and March 5, 2018. The renewal application costs $495, with thousands of applications needing to be filed across the country. Undocumented youth who trusted their private information and pay the lump sum to the Department of Homeland Security will have to decide if it is safe to continue investing in the federal program. The thought that Immigration and Customs Enforcement (ICE) could use data given for the purpose of applying for DACA in their efforts to deport individuals has become a new fear for some. Both ICE and the United States Citizenship and Immigration Services (USCIS) are hosted under the Department of Homeland Security. 

*Elisa Santana is a guest researcher at the Berlin Institute for Integration and Migration Research (BIM) and a German Chancellor Fellow supported by the Alexander von Humboldt Foundation. Elisa previously worked for at the U.S. House of Representatives in Washington; she advised on immigration, refugees, homeland security, and civil liberties.


Sources and Further Reading
DREAM Act of 2011, US Congress
DREAM Act dies in Senate, Politico, Sept. 2010
Consideration of Deferred Action for Childhood Arrivals (DACA), US Citizenship and Immigration Services
Number of Form I-821D,Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017, US Citizenship and Immigration Services (March 2017)
Results from Tom K. Wong1 et al., 2017 National DACA Study, Center for American Progress, 2017
Re: Texas, et al. v. United States, et al., No. 1:14-cv-00254 (S.D. Tex.), Ken Paxton, Attorney General of Texas, letter to Us Attorney General Jeff Sessions (June 29, 2017)
Jeff Sessions Letter Advising an End to DACA, reprinted in The New York Times, Sept. 5 2017
The U.S. Supreme Court’s Big Immigration Case Wasn’t About Presidential Power, Peter M. Shane, The Atlantic, June 2016
Here’s What President Trump Has Said About DACA in the Past [w/ video], Time Magazine, Sept. 2017
Letter from then-Senator Jeff Sessions regarding the DREAM ACT 2010, reprinted in Politico, Dec. 2010
S. 1615 DREAM Act 2017, US Senate
Poll: Majority wants Congress to establish path to citizenship for DACA recipients, Politico, Sept. 2017
Deferred Action for Childhood Arrivals 2017 Announcement, US Citizenship and Immigration Services, Sept. 2017
Dreamers’ new risk after Daca: US could use their personal data to target them, The Guardian, Sept. 2017
Header Image; LA March for Immigrants Rights (Sept. 2017) via Molly Adams on Flickr, http://bit.ly/2femn2E (CC by 2.0)
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Is the “Trump era” of immigration policy starting to take shape?

Someone who voted for US President Donald Trump on the basis of his promises to get tough on immigrants and refugees could be forgiven for being a bit disappointed some 80 days into his administration. Mexico does not seem any closer to paying for a wall, the “Muslim ban” failed to pass legal muster (as MigrationVoter predicted), and Trump seems to have abandoned, at least for the moment, promises to crack down on funding for sanctuary cities and overturn DACA. (This last one is a real tough one to swallow for anti-immigration advocates. As Mark Krikorian of Center for Immigration Studies writes on his blog, he expected to be disappointed, but not “for Trump to break an explicit promise regarding his headline issue on the administration’s first business day in office.”)

Past disappointments aside, yesterday gave some signs to advocates against immigration that Trump has not abandoned all of his anti-immigrant promises.

First, Attorney General Jeff Sessions, himself a well-known advocate of restrictive immigration policies during his senate years, delivered a speech to border enforcement in Arizona intended to outline coming changes to the immigration and border enforcement system.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

Sessions announced two types of changes: 1) new recommendations to federal prosecutors mandating prioritization of certain types of crimes, 2) reforms to immigration courts.

New Recommendations to Federal Prosecutors

The new recommendations will require federal prosecutors to consider filing additional criminal charges against undocumented immigrants they capture, including: transportation or harboring of immigrants, fraud and aggravated identity theft (if they uncover forged identity documents) assault on a federal officer, and felony re-entry.

⇒ So what does this really mean? Sessions is essentially instructing federal prosecutors to stack charges against undocumented immigrants as high as possible. If any felony charges stick, that person will be labeled a criminal illegal alien, which as we know, is the group this administration has promised to target for deportation. By pushing for more felony convictions, they widen the number of people who can be considered “criminal aliens” and can make it more difficult or impossible for these people to ever return to the US.

Since these are recommendations, it is obviously at the discretion of prosecutors to push for multiple counts against undocumented migrants in their jurisdiction (and each count takes time and evidence to back up and litigate.) So to ensure that no prosecutors are tempted to ignore these guidelines out of disinterest or convenience, the DOJ has thrown in an additional component: all 94 district attorney’s offices (not just those from border areas) must now appoint a Border Security Coordinator – to headline the efforts against undocumented immigrants. If this is someone’s entire job, they are certainly more likely to prioritize the DOJ’s recommendations and try to convict undocumented immigrants of as any crimes as possible.

Changes to Immigration Court

Sessions announced a new streamlined procedure to appoint more federal judges to immigration benches, with the goal of hiring 50 this year and 75 next year to help reduce the backlog of immigration cases. In addition, all immigrants apprehended at the border will now automatically be sent to detention centers, where judges will directly come to them to decide their fates. For this, he promises to hire 25 new judges. (Note: This backs up an earlier memorandum from Department of Homeland Security calling for detention for all apprehended immigrants and more judges and officers, but it still isn’t clear whether this changes Trump’s federal hiring freeze for other kinds of supporting employees judges may need.)

⇒ So what does this really mean? People on both sides of the immigration debate agree that there is a need for a higher number of qualified immigration judges to ensure that people in immigration detention and awaiting decisions on asylum claims can have their claims adjudicated more efficiently. A “streamlined” procedure for hiring raises eyebrows, in that some may question whether it will be possible to get the best-qualified candidates to judge incredibly complex immigration cases in an abbreviated procedure. Given that under the existing system judges have faced criticism in the past, who knows whether or not this will be a downgrade. We’ll have to wait and see on that one.

The potentially more interesting aspect is the 25 new detention center judges. Unlike criminal charges, immigration offenses do not typically entitle the accused to a lawyer. Having adjudication take place directly at the detention center decreases the likelihood of an individual being aware of their rights, such as the possibility of seeking asylum or applying for temporary protection or a special visa (like Special Immigrant Juvenile Status.)

It also raises concerns about the circumstances of detention. Automatic detention for everyone would presumably include children, and there is some question to the legality of this under international law (see, for instance, here and here.)

Newcomers to DHS from the Anti-Immigrant Community

Aside from Sessions’ very clear statements yesterday in Arizona, we received another hint this week at the Trump administration’s intentions to get tough on immigration. The Department of Homeland Security hired two high-profile advisors linked to the group FAIR and think tank Center for Immigration Studies. Both organizations were founded by the far-right anti-immigration activist John Tanton, and support policies like an end to birthright citizenship and heavily reduced legal immigration, as well as much stricter enforcement of existing laws.

According to the DHS spokesman, as reported by CNN Jon Feere, formerly of CIS, has been hired as an advisor to the director of ICE. Over at Customs and Border Protection, Julie Kirchner, the former executive director of FAIR, has been hired as an advisor to the commissioner. We’ll take a deeper look at the implications of these choices later in the week, but for now its worth noting that Trump’s once stalled plans on immigration seem to be moving along once more, and their direction is quite clear.

Sources and Further Reading
Injunction against Travel Ban- Granted (Hawaii et al v. Trump) US District Court of Hawaii, March 2017
Foreign Minister said Mexico not paying for wall- Mark Rubio on ABC NEWS, April 2017
Sanctuary City list on hold – Washington Times, April 2017
Declined Detainer Outcome Report- Suspended, Immigration and Customs Enforcement
Will Trump go forward with a Muslim Ban, and if so, how?” MV, Jan 2017
Is Trump going to cancel DACA or not? Mark Krikorian, CIS, Jan 2017
Sessions on immigration– OntheIssues.org
Full remarks of Attorney General Sessions, US Dept. of Justice, April 2017
DHS Memo on Implementing Border and Enforcement Policies, DHS, Feb. 2017
Presidential Memorandum Regarding Hiring Freeze, White House, Jan. 2017
Hard-line anti-illegal immigration advocates hired at 2 federal agencies, CNN, April 2017
(Image via Gage Skidmore on Flickr, http://bit.ly/2oXE0e8, (CC by SA 2.0)