The Facts About DACA And DREAMers

"We will resolve the DACA issue with heart and compassion -- but through the lawful Democratic process -- while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve," he said. "We must also have heart and compassion for unemployed, struggling, and forgotten Americans." – President Donald Trump

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The Deferred Action for Childhood Arrivals program (DACA), which was started by President Obama in 2012, lets young immigrants who came to the United States as children of illegal immigrants to a) apply for temporary protection from deportation, and b) obtain work permits, attend college, get a driver’s license, etc. There was a $495 fee attached to this, and it needed to be renewed every two years.

These immigrants became known as DREAMers after the DREAM Act, a failed piece of legislation meant to give these particular immigrants legal status in return for attending college or joining the military, and to eventually help them apply for citizenship. Though it kept popping up in Congress between 2001 and 2010, it never passed. 

So in 2012, President Obama used an executive order to issue DACA, which meant that these DREAMers who met certain criteria could apply for “deferred action” every two years. This was not a path to citizenship; "deferred action" meant that deportation proceedings would not be started against them. They would be “lawfully present” for those two years. This was only available for immigrants who met the following criteria:

•  lived in the US since 2007
• arrived before they were 16
• were 30 or younger as of June 2012
• were in high school, had a high school diploma (or a GED), or were discharged from the Coast Guard or US Armed Forces
• had a mostly clean criminal record (not convicted of a felony or serious misdemeanor)

Unfortunately, most people under DACA have no path to become citizens, because "federal immigration and naturalization law contains a categorical bar that prevents, in most circumstances, a person from applying for permanent residency or citizenship if their most recent entry to the United States was 'uninspected'" - which is precisely what happened. "Permanent residency is the step necessary to become a citizen and since DACA recipients are not eligible to be permanent residents, they cannot become citizens."

In 2014, President Obama decided to expand DACA by a) loosening age restrictions and b) including parents in what was called Deferred Action For Parents Of Americans (DAPA). Suddenly, half of the illegal immigrants in the United States were covered. A lawsuit against both DAPA and the expansion of DACA was successful (the Supremes deadlocked, so the 5th Circuit Court of Appeal’s decision to block the action stood). This was not, however, a lawsuit brought on constitutional grounds. It was because of “Texas’s claim that it would incur costs” and because “the Obama administration did not go through the APA’s notice and comment process when creating them.”

The original DACA remained. Is it constitutional? Probably, at least according to 100 legal scholars who sent President Trump a letter. Michael Tan, an attorney with the ACLU's Immigrants Rights Project, has noted that the U.S. Government has "'repeatedly and successfully' defended DACA against constitutional challenges.”  

This past July, Republicans from Texas threatened to go to the same judge who stopped DAPA and try once again to stop the original DACA, assuming this judge would do to the latter what he did to the former. In addition, Jeff Sessions has said that the Justice Department would not defend DACA. It seems like a safe bet that the judge who blocked DAPA would also block DACA. What is not as clear is how DACA would stand up if the case went to the Supreme Court.

The Trump administration is, as you probably know by now, rescinding this program. President Trump’s claim is that “the Constitution does not allow the president the power to unilaterally change immigration law by executive order.”  Congress has six months to act, though those protected under DACA currently will be protected until their two year window expires. Here are the key protections that remain in effect:

• Work permits issued under DACA will be honored until they expire.
• New DACA applications already received by Tuesday will be processed.
• Anyone whose status is set to expire by March 5, 2018, has a month to apply for a new two-year permit, and those renewal applications will be processed.

The decision is universally unpopular among Democrats, while Republicans have had a mixed response. President Trump has made it clear he wants DACA legalized through law rather than executive action, though according to National Review, President Trump has signaled that “if Congress can’t get DACA done legislatively, he’ll continue the program through executive action, just like his predecessor.”

There is a bipartisan BRIDGE Act that has been proposed that would in essence provide the same protection. 

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I, for one, support what DACA has done. If its implementation was unconstitutional, that needs to be fixed. But if the executive branch does not step up and reaffirm DACA or something similar, the repercussions will be significant and morally troubling.

I'd like to think Washington's legislative and executive branches will learn something through this about the importance of procedure, separation of powers, and the important of getting it right so that individual lives do not continue to be buffeted by the political storms in DC. I was reading just this week of a specific group of DREAMers, Iraqi-born Christians, who are quite fearful of being sent back to a country where they will likely be persecuted, tortured or killed. How can this not clearly be a grave injustice?

I'd also like to think that average Americans will step up and make sure DREAMers know they are not alone in the midst of this turmoil. I might not be able to change much in Washington (other than contacting my representatives), but this I can do - and so can you.