Originally published by The New Yorker
On Tuesday night, a federal district-court judge in California, William Alsup, stepped in to halt the Trump Administration’s cancellation of Deferred Action for Childhood Arrivals (daca), the Obama-era program that shields from deportation seven hundred thousand immigrants who came to the U.S. as children. “A new Administration is entitled to replace old policies with new policies,” Alsup wrote in his order. President Trump had publicly wavered on ending the program—he had promised to deal with Dreamers, as daca recipients are known, “with heart”—but ultimately he bowed to the anti-immigrant faction in his Administration that considered the program an executive amnesty. The question for Alsup, however, was “whether the new Administration terminated daca based on a mistake of law.” The judge rejected the Trump Administration’s main reason for ending the program—that it wouldn’t hold up if critics of the policy challenged it in court—as “arbitrary,” “capricious,” and too flimsy to be the basis for ending a program on which nearly a million people depended.
The judge’s injunction, which the Administration has vowed to appeal, means that those who had daca on the day the program was cancelled can now apply to renew their status—something they previously had to do every two years. Following Trump’s September decision to cancel the program, roughly twenty thousand recipients weren’t able to renew their status in time to meet a string of final deadlines imposed by his Administration. The judge’s injunction, assuming it withstands an appeal, could allow them to hold on to work permits and avoid becoming the targets of immigration authorities in the short term, at least. “It’s a big deal and an important ruling,” Karen Tumlin, the legal director of the National Immigration Law Center, told me late Tuesday night. “But what comes next? This doesn’t take away the urgency for Congress to come up with a permanent solution.”
While cancelling daca, Trump also gave Congress six months—until March 5th—to pass a law to protect the very Dreamers whose status he was endangering. Yet after months of negotiations Democrats and Republicans are still at an impasse. An overwhelming majority of Americans supports dacarecipients, according to polls, but Republicans are reluctant to appear soft on undocumented immigrants, particularly going into an election year. Democrats, meanwhile, are pushing for a bill, called the Dream Act, that would grant a path to citizenship for Dreamers, but they’re uncomfortable making some of the concessions—like hiring more immigration enforcement agents and making changes to certain aspects of the legal immigration system—that would bring enough Republicans on board to pass it. Next week, Congress will have to vote to continue funding the government to avert a shutdown, and Democrats will have to decide if daca is an issue they are willing to risk a shutdown over. While these deliberations take place in Washington, a hundred and twenty daca recipients lose their status every day nationwide. “Congress is working off the March deadline as if they pass a thing and then the problem is fixed. But creating a new process doesn’t work like that,” Cecilia Muñoz, who, as the director of the Domestic Policy Council in the Obama White House, helped craft daca, told me. “If they were to pass something, even now, the likelihood of the government being ready to go before hundreds of thousands of people lose work authorization is very small.”
Just hours before the judge issued his ruling Tuesday, Trump hosted lawmakers at the White House for a bizarre public negotiating session. For ninety minutes, and with television cameras in the room, the President played the role of conciliator, telling Democrats and Republicans that it was time to pass “a bill of love” and that he could help. “I’ll take the heat. I don’t care,” he said, in reference to the pressures lawmakers felt from their constituents. “I’ll take all the heat you want to give me, and I’ll take the heat off both the Democrats and the Republicans. My whole life has been heat. I like heat, in a certain way.” Trump then made a string of confusing and contradictory statements, backing Democrats’ calls for a plan to protect Dreamers one moment, then attacking “chain migration” and touting the promise of a “border wall” in solidarity with Republicans the next. At one point, Senator Dianne Feinstein, the California Democrat, asked Trump if he would support a so-called clean version of the Dream Act—a bill that would protect Dreamers without making concessions to Republican demands for increased border measures. “Yeah, I would like to do it,” he said. Afterward, when the White House released a transcript of the meeting, his response was omitted, and within hours he was walking back his words on Twitter. “As I made very clear today,” he tweeted, “our country needs the security of the Wall on the Southern Border, which must be part of any daca approval.” (In another tweet, he referred to the California Democrat as “Sneaky Dianne Feinstein.”)
I asked a Democratic Senate staffer close to the daca negotiations how the judge’s ruling might affect the talks. “It doesn’t change anything,” he told me. “The Department of Justice blasted the decision. The White House blasted it. They’re all just full steam ahead.” In a statement released shortly after the ruling, the Department of Justice vowed to appeal the ruling to the Ninth Circuit Court of Appeals and later, if necessary, to the Supreme Court. The President’s legislative director, Marc Short, told NPR, “The reality is this is a problem that’s needed to be solved for many, many years. What this White House did was give Congress six additional months to come up with a solution. If we let this drag out, the risk would be that the Supreme Court would say, ‘Yeah, we’re overturning the decision,’ and immediately daca ends. It’s better to give us an opportunity to find a legislative fix.” (In a separate appearance, on Fox News, Short attacked the Ninth Circuit Court of Appeals as a group of “liberal, left-wing judges who have been overruled at higher courts.”)
On Wednesday, I spoke by phone with Brittany Aguilera, a twenty-eight-year-old daca recipient originally from Trinidad, who’s lived in the Far Rockaway neighborhood of Queens, in New York City, since she was three. In November, because of a paperwork error that occurred after Trump’s cancellation of daca, Aguilera lost her status. Overnight, she watched as her work authorization expired. Late Tuesday night, her phone buzzed with the news alert about the judge’s injunction in California. She didn’t know exactly what to think. “At this point, I just want a solution,” she said. “I don’t really take this as serious news just yet.” On Wednesday morning, she was meeting with an immigration lawyer to discuss her options. We spoke as she was coming out from her appointment. “We were meeting to discuss my long-term solutions,” she said. “Outside of daca, we’re trying to figure out what can be done for me personally, which isn’t that much, quite honestly.” Her attorney was still parsing the terms of the judge’s injunction. “I would obviously reapply for daca if I could. It would be a thrill,” she said. “It would mean that I could resume my life just as it was before, at least for now.”