The potential demise of DACA

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President Donald Trump announced in a statement on September 5 that the Department of Homeland Security would begin a “wind-down” of the Deferred Action for Childhood Arrivals (DACA) Program. DACA, which has existed for only five years, has protected approximately 800,000 undocumented young people in the United States from deportation. The program was implemented in June of 2012 to allow illegal immigrants who came to the United States as children (often through no fault of their own) to receive a two-year period of deferred action from deportation. DACA recipients also received a work permit and were given an opportunity to renew their participation in the program.

DACA is not an official law; rather, it is an executive action that was declared by the Obama administration in response to criticism from Hispanic–American leaders about the U.S. Immigration and Customs Enforcement Department’s increased deportation of illegal immigrants, which was at a historic high during that time. Democrats praised the order as an opportunity to “give young immigrants their chance to come out of the shadows and be part of the only country they’ve ever called home.” Republicans criticized it, however, as a chance for illegal immigrants to falsely claim they came to America as children, as well as a means for those same illegal immigrants to flood the job market that was already in poor spirits. Other critics of the directive believed it was an unconstitutional overreach by the executive branch that “usurped Congressional authority,”—notably, the exact words that appeared in President Trump’s recent statement.

At the time of its passage, the order was expected to affect 800,000 immigrants and was seen as a sweeping directive of amnesty.

In order for an illegal immigrant to receive protection under DACA, he or she had to fulfill the following requirements: (1) Under the age of 31 as of June 15, 2012; (2) Came to the United States before reaching your 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 your request for consideration of deferred action with USCIS; (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.

At the time of its passage, the order was expected to affect 800,000 immigrants and was seen as a sweeping directive of amnesty; however, former President Barack Obama stated that the order was “not amnesty,” “immunity,” or a “path to citizenship,” but rather a “temporary stopgap measure.” The word “amnesty” was also mentioned in President Trump’s statement in reference to Congress’ repeated rejection of an “amnesty-first approach.” Despite immediate concern over the announcement of the program’s end, Trump did give a period of reprieve for the DACA program to be saved, if Congress chose to do so within six months. Although, it is important to observe that this Congress has been somewhat unsuccessful in the passage of laws this presidential term.

Since the announcement, illegal immigrants who were brought to the United States as children are not only at risk of losing valuable protection that kept them from potentially being deported, but their eligibility to apply for work authorization in the United States will likely be extinguished as well. Those who did not submit a DACA application by September 5 may no longer apply to the program, although it remains in existence for another 6 months. Current beneficiaries of the program who need to renew their status have until October 5 of this year to reapply to ensure they will retain their status prior to the program’s ending. DACA protections for all recipients are set to expire on March 5, 2018.

In regards to the legality of Trump’s decision, AG Sessions has declared that because DACA has the same “legal and constitutional defects the courts recognized with the Deferred Action for Parents of Americans and Lawful Permanent Residents, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Sessions was referring to an expansion component of the DACA program referred to as DAPA. When it was proposed in November of 2014, it would have given protection to approximately 4 million illegal immigrant parents of children who were U.S. citizens, as well as legal permanent residents born on or before the above date. The decision to enjoin the program was affirmed per curiam by a divided Supreme Court of the United States in United States v. Texas after a 4–4 decision in June of 2016. The preliminary injunction came from a Texas District Court, which was then affirmed in two separate three–judge panels at the United States Court of Appeals for the Fifth Circuit.

The Fifth Circuit reasoned that Congress had already provided the limited ways in which illegal immigrants could lawfully reside in the United States through the Immigration and Nationality Act (INA). Under the Act, an illegal immigrant parent could obtain lawful immigration status through their child’s immigration status if the applicant: (1) had a U.S. citizen child who was at least twenty–one years old; (2) left the United States; (3) waited 10 years, and then (4) obtained one of the limited number of family-preference visas from a United States consulate.

DAPA did not have an age requirement, did not require the immigrant to leave for a period of ten years, and did not require that the individual obtain a visa. The reviewing court found that DAPA would allow illegal immigrant parents to obtain lawful presence without complying with any of the requirements that Congress had expressly set out in the INA. It should be noted that in the Court’s opinion, they observed that INA specifies classes of immigrants eligible and ineligible for work authorization. It explains that Congress’ employment–authorization scheme “protect[s] against the displacement of workers in the United States,” and that the “primary purpose in restricting immigration is to preserve jobs for American workers.”

It should be no surprise that the President has now directed his crosshairs at a program that directly conflicts with his supporters’ primary interests—providing jobs for legal Americans.

It appears that Congress’ purpose in creating INA pairs squarely with the anti-immigration rhetoric that helped lead President Trump to the Oval Office in November of 2016. It should be no surprise that the President has now directed his crosshairs at a program that directly conflicts with his supporters’ primary interests—providing jobs for legal Americans. DACA sought to protect children of illegal immigrant parents and give them the ability to find employment within the United States without the threat of being deported when reporting their immigration status. While many of these children never knew a home other than the United States, their ability to work under DACA program protection was seen by many as taking jobs away from Americans.

Still, many DACA recipients and allies have refused to go down without a fight. While AG Sessions initially believed the continuation of DACA would open the floodgates of litigation, it has actually been the suspension of the program that has created that undesirable effect. Since the announcement, a coalition of 16 Democratic and nonpartisan state attorneys have filed suit in New York federal courts to restrict the presidential decree. Interestingly, they argue their own set of constitutional principles that include due process, procedures for federal regulations, and discriminatory intent.

As with any highly contentious issue, many people stand in both support and opposition to the decision. Joel Pollak, Senior Editor–at–Large with Breitbart, called the decision “the right move, the right way.” He is of the opinion that former President Obama’s passage of DACA was a violation of the Constitution’s separation of powers doctrine and that President Trump’s decision correctly places the immigration ball back in Congress’ court. Former President Obama spoke out vehemently against the announcement calling the move “wrong,” “self–defeating,” and a “shadow [that] has been cast over some of our best and brightest young people once again.” He believes that “it’s up to Members of Congress to protect these young people and our future.” Regardless of which side of the aisle one stands on, one question remains in the wake of President Trump’s proclamation:

what, if anything, will Congress do with the rights of illegal immigrants in the next 6 months?