Future of DACA Program Remains Uncertain

Executive, congressional and judicial action all are possible

By Allen Smith, J.D. Sep 21, 2017
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This is the third in a three-part series of articles on the Deferred Action for Childhood Arrivals (DACA). Today we examine congressional proposals to provide continued work authorization to DACA recipients.

When Attorney General Jeff Sessions announced on Sept. 5 that the Trump administration would allow DACA to expire March 5, 2018, President Donald Trump urged Congress to create legislation to protect DACA participants. He suggested he may act, via executive order, if Congress does not. State attorneys general also responded, suing the Trump administration for ending DACA.

‘Do Your Job’

On the same day as Sessions' announcement, Trump tweeted, "Congress, get ready to do your job—DACA!" He added, "Congress now has six months to legalize DACA (something the Obama administration was unable to do). If they can't, I will revisit this issue!"

Trump then tweeted on Sept. 7 that Dreamers concerned about their status from Sept. 5 to March 5 "have nothing to worry about—No action!"

A rumor about a deal between Trump and Senate Minority Leader Charles Schumer, D-N.Y., and House Minority Leader Nancy Pelosi, D-Calif., emerged on Sept. 13, with Schumer and Pelosi saying, "We agreed to enshrine the protections of DACA into law quickly and to work out a package of border security, excluding the wall, that's acceptable to both sides," reported CNBC.  

​But Trump tweeted on Sept. 14, "No deal was made last night on DACA. Massive border security would have to be agreed to in exchange for consent. Would be subject to vote." He added in another tweet, "The wall, which is already under construction in the form of new renovation of old and existing fences and walls, will continue to be built. Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really! They have been in our country for many years through no fault of their own—brought in by parents at [a] young age."

If Congress does not act by March 5, 2018, Trump may consider extending DACA another six months to give Congress more time to come up with a solution, predicted Andrew Greenfield, an attorney with Fragomen in Washington, D.C. "But if Trump does do that, I don't see him doing that more than once," he said.

However, Pelosi said on Sept. 12 that she believed Congress would pass the Dream Act to protect DACA participants within six weeks, and no later than when Congress breaks for its winter recess.

Bills Introduced

​Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla., said, "Congress is now under pressure to enact legislation to protect DACA beneficiaries."  Several bills have been introduced that would provide permanent residence benefits and a pathway to citizenship for Dreamers. These include, according to the American Immigration Lawyers Association:

  • S. 1615, the Dream Act of 2017. On July 20, Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., introduced the bill to provide those brought to the United States as children the opportunity to apply for lawful permanent status. The bill has nine co-sponsors.
  • H.R. 3440, the Dream Act of 2017. Reps. Ileana Ros-Lehtinen, R-Fla., and Lucille Roybal-Allard, D-Calif., introduced the House version of the Dream Act on July 26. The bill has 199 co-sponsors.
  • H.R. 3591, the American Hope Act of 2017. On July 28, Rep. Luis Gutierrez, D-Ill., introduced this bill, which creates a chance for people brought to the country as children to apply for lawful permanent residence. The bill has 152 co-sponsors.
  • H.R. 1468, the Recognizing America's Children Act. Rep. Carlos Curbelo, R-Fla., on March 9 introduced this bill, which would let people who were brought to the U.S. as children adjust their status to conditional nonimmigrant for an initial five-year period. There are 32 co-sponsors.

Another bill would allow DACA participants to receive work authorization and provisional protected presence from deportation for up to three years. The Bridge Act (H.R. 496 and S. 128) is sponsored by Rep. Mike Coffman, R-Colo., and Rep. Luis Gutiérrez, D-Ill., in the House of Representatives and Sen. Lindsey Graham, R-S.C., and Sen. Dick Durbin, D-Ill., in the Senate. H.R. 496 was introduced Jan. 12 and has 31 co-sponsors. S. 128 also was introduced Jan. 12 and has nine co-sponsors.

"Trump has said he supports the Dreamers and wants a solution, but it's unclear what legislation he would support," said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management.

Greenfield said that many legislators want to fix DACA but they are encountering practical problems. First, six months is "an incredibly short period to get legislation approved by both houses of Congress." Second, comprehensive immigration reform has been a challenge for Congress for many years. It will be difficult for members of Congress to push through a bill that is related only to DACA, he predicted. "Many senators and representatives will see that as an opportunity to tack on other parts of immigration reform that would be much more controversial and require more time." 

​DACA legislation may become a bargaining chip in immigration reform discussions, said Steven Camarota, director of research for the Center for Immigration Studies in Washington, D.C., and an opponent of DACA.

Some representatives might seek the permanent use of E-Verify or funding for a wall along the Mexico border in exchange for legislation to provide Dreamers with a path to citizenship, said David Grunblatt, an attorney with Proskauer in Newark, N.J. Requiring funding for a wall would be a nonstarter among Democrats.

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"The truth is that the debate over DACA will be a critical one as it moves into the congressional forum because it presents the most attractive group among those undocumented in this country," he said. If Congress can't find a solution for DACA, "it doesn't harbor well for any attempt at immigration reform."

The wheels are already in motion for administratively rescinding the DACA program, noted Luis Campos, an attorney with Haynes and Boone in Dallas.

It will be difficult politically for the president to reverse course without Congress acting, he said.

New York Lawsuit

​If the president and Congress don't extend DACA participants' work authorization, the courts may be their last hope.

On the flip side, if the Trump administration had not rescinded DACA, 10 state attorneys general, led by Texas, had promised to sue the Trump administration. They gave the administration a deadline to respond to their demand—Sept. 5, the day Attorney General Jeff Sessions announced the end of the program.

On the other hand, New York, Massachusetts and Washington have led a coalition of 16 attorneys general in the U.S. District Court for the Eastern District of New York, suing the Trump administration on Sept. 6 for ending DACA. The lawsuit maintains that discontinuing the program violates due process rights; harms states' residents, institutions and economies; and violates the equal protection clause of the 14th Amendment by discriminating against Dreamers of Mexican origin, who account for 78 percent of DACA participants. 

​New York Attorney General Eric Schneiderman said in a statement, "It's clear that President Trump's DACA repeal would cause huge economic harm to New York and that it's driven by President Trump's personal anti-Mexican bias." He added, "Attorneys general have not hesitated to act to protect those we serve, and I'm committed to continue to use every tool to protect New Yorkers."

In addition to New York, Massachusetts and Washington, the lawsuit was filed by Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia.

Commenting on the New York complaint, Grunblatt said "it seems a little bit of a stretch." Unlike the travel ban, where the president had made numerous negative comments about Muslims, the president has expressed reluctance to end the DACA program, so there doesn't seem to be the same amount of ill will, he said. 

California Lawsuit

California, joined by Maine, Maryland and Minnesota, filed a separate lawsuit on Sept. 11 against the Trump administration over the rescission of DACA. The states argued the Trump administration violated the Constitution and federal laws by ending the program.

The California complaint alleges:

  • The termination of DACA may mean the Trump administration will renege on the promise made to Dreamers that information they gave to the government to participate in the program will not be used to deport them. The threatened misuse of sensitive information provided in good faith by DACA grantees to the government is fundamentally unfair, violating the Fifth Amendment's due process guarantee.
  • The federal Regulatory Flexibility Act requires the government to analyze the effects of a proposed change on small businesses, many of which are owned by, or employ, Dreamers, and to accept comments on the proposed change. The administration ignored these legal requirements.
  • The termination of DACA directly affects the substantive rights of almost 800,000 people and indirectly affects millions more, as well as businesses and nonprofits and the towns, cities and states these people call home. The federal Administrative Procedure Act requires that such a massive change is made for sound reasons, and that the public is able to make formal comments before such a change is enacted into law. The program cannot be terminated without going through notice and comment rulemaking, even if the initiative was not implemented through rulemaking.

However, Grunblatt said that the last assertion is "a pretty hard argument to sell."

Other Lawsuits

​Six Dreamers sued the United States for ending DACA on Sept. 18, alleging violation of due process, Reuters reports. The NAACP sued Sept. 18, noting that most DACA participants are people of color.

What concerns some Dreamers the most is the possibility of being deported based on information they volunteered to the government. For people who trusted the government, enrolled in DACA and were told the information would never be used against them, the possibility of now being deported based on that information is disastrous, said Lynda Zengerle, a retired attorney with Steptoe and Johnson in Washington, D.C. "No one will believe the government again if they hide in the shadows."

She said that lawsuits might delay the rescission of DACA and that plaintiffs might get a temporary restraining order to not have the program ended right away. But she described the lawsuits as "an uphill battle."

This was the last in a three-part series of articles on DACA. Read the first installment on the tech sector's support of Dreamers and second installment on employer's limited options to help Dreamer employees.

 

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