Originally Published in The Appeal
Liz Robbins - September 10, 2020
"To be in the same place where I was three years ago is very frustrating," said one teen who, like others, has seen her DACA application rejected despite a ruling in June against the Trump administration’s cancellation of the program.
Ximena Zamora was 15 years old and preparing to apply for the Deferred Action for Childhood Arrivals program for the first time in September 2017. That’s when the government terminated it, upending her life.
In June, the Supreme Court ruled that the Trump administration had improperly ended DACA, effectively restoring the program as it existed prior to the cancellation. Zamora rejoiced in what she thought was a victory and prepared to apply for DACA again. Her joy was short-lived.
The Department of Homeland Security’s acting secretary, Chad Wolf, issued a memo on July 28 that excluded first-time applicants like Zamora from applying for DACA. It also reduced the protected status of renewals from two years to one and restricted recipients from traveling out of the country.
“You get your hopes up—not once but twice,” said Zamora, 18, who was born in Mexico but has lived in New York since she was 2. “To be in the same place where I was three years ago is very frustrating.”
From hope to despair, legal challenge to limbo, DACA recipients and would-be applicants feel locked in a relentless cycle of uncertainty. Even after June’s Supreme Court ruling, the lawsuits over DACA continue. The next case will be heard in the U.S. District Court for the Eastern District of New York on Oct. 7.
Zamora has joined eight young immigrants and the advocacy group Make the Road New York in challenging Wolf’s memo in the district court. The state of New York is also challenging his memo, amending a 2017 case against the Trump administration’s shutdown of DACA that includes 15 other states and the District of Columbia.
There is a separate lawsuit in the Southern District of Texas, in which Texas and nine other states sued the federal government to end DACA, claiming the Obama administration overreached in creating it. That case is not scheduled to hear arguments until November, after the election.
The New York cases hinge on a potential precedent-setting finding. The Government Accountability Office, in a report on Aug. 14, concluded that because the acting DHS secretary was not confirmed by the Senate, he is not legally eligible to serve in his role. Lawyers for the New York plaintiffs are asking Judge Nicholas G. Garaufis, of the U.S. District Court in the Eastern District of New York, to rule on whether the memo was valid if its author was not.
“I don’t know what to expect,” said a 17-year-old plaintiff in an interview. Because she is a minor, she goes by her initials M.B.F. A resident of New York since she came from the Dominican Republic at age 4, she applied for DACA on July 7. As a first-time applicant, she was rejected; she got her application back by mail, with her check, this past week.
“I know this is a roller coaster, with too many ups and also way too many downs,” she added. “I don’t want more people to have to go through what I’m going through.”
Approximately 1 million young immigrants—plus their families and communities—are again waiting for a definitive outcome. About 300,000 are first-time applicants, according to the Center for American Progress, and 55,000 of those have turned 15—the minimum age to apply—since the program was terminated.
According to the United States Citizenship and Immigration Services (USCIS), the agency that processes the DACA applications, it received 3,189 first-time applications following the Supreme Court decision. All were rejected. Of the 48,545 renewals the agency said it received in the two months after the decision, it had processed 42,753 by August 18.
“The new memo will reduce our chances of getting a job, of being independent, and being able to accomplish the things we have tried to do with DACA—because we have to renew more and our status is at risk,” Martín Batalla Vidal, the lead plaintiff in the longstanding Make the Road New York case, said of Wolf’s memo.
Because Batalla’s case was one of three challenges before the Supreme Court, the Court consolidated them into the Department of Homeland Security v. Regents of the University of California. That 5-4 Regents decision on June 18 seemed like vindication for DACA recipients also called Dreamers, even if the Supreme Court left open the possibility that the government could still end the program provided it gave a sound legal reason. The Court sent it back to USCIS to reconsider.
The agency, however, did not immediately explain whether it would accept initial applications, causing widespread confusion for prospective applicants. Instead, USCIS later admitted it was holding on to applications. Lower courts stepped in to try to force the government to comply—to no avail.
On June 30, the Fourth Circuit Court of Appeals issued a mandate requiring the agency to reset the terms of DACA to what it was before the 2017 rescission. Then, on July 17, in a separate DACA case before the U.S. District Court in Maryland, Judge Paul W. Grimm ordered the government, on the basis of the Supreme Court decision and the Fourth Circuit, to restore DACA. Instead, on July 28, Wolf issued his memo that drastically changed the program.
“The acting secretary expressed serious concerns with the DACA policy and made certain immediate changes to limit the policy’s scope while DHS conducts a full and careful review of the policy,” Joseph Edlow, the USCIS’s deputy director for policy, said in a statement to The Appeal. “Ultimately, DACA is not a long-term solution for anyone. As has been the case since the inception of the policy, any kind of permanent amnesty can only legally come from Congress.”
Karen Tumlin, a lawyer for the Jerome N. Frank Legal Services Organization at Yale Law School, which is also arguing the class action case, called the administration’s response to the Supreme Court “the definition of cruelty, and flouting not just the law, but public will,” she said. “This is a program that is popular across all segments of society, this laser focus to go after DACA recipients at all costs is heartless.”
The summer of uncertainty following what seemed to be a victory, she said, triggered new trauma for DACA recipients. The individual plaintiffs describe physical symptoms of stress: panic attacks, migraines, neck pain, and new medication prescribed for high blood pressure.
“The adjective they use with us over and over again is that they are ‘exhausted,’” said Paige Austin, who is arguing the case for Make the Road New York. “They feel like they’ve done everything right, there’s nothing more they could have possibly done to show that this is a worthwhile program.”
Zamora has watched as her sister, two years older, received DACA, graduated from college and learned to code. Zamora had to delay her freshman year at Baruch College because their father lost his restaurant job because of the coronavirus pandemic.
M.B.F.’s situation is even more precarious. Under DACA, the government uses its discretion not to deport recipients for a period of two years. But she has no such protection because of the new policy. “I felt like another brick was thrown at me,” she said.
In March, she will be 18 and a half, the age when the government considers her to be living in the country illegally.
For current DACA recipients who now must go from a two-year work permit to paying $495 each year for a new authorization, the instability makes it harder to apply for jobs, pay for school, renew licenses, apply for loans, and purchase property, while also providing for family members.
“It’s not a mistake that USCIS understands that this is already an uphill climb for a lot of people financially,” said Juan Escalante, a DACA recipient and digital campaigns manager for the advocacy group FWD.us. “For them to do this consciously, really underscores how far they are willing to go to disenfranchise people from a benefit that enables them to live here with a semblance of normalcy.
He said what transpired since the Supreme Court decision only makes it more imperative that Dreamers seek a legislative solution and not rely on the courts.
Advocates are not the only ones concerned about the sanctity of legal decisions. Garaufis, the Brooklyn federal judge who is hearing the New York cases next month, said he was deeply concerned about the USCIS’s initial statement that the Supreme Court’s decision had “no basis in law.”
“It is not beneficial to anyone to have a federal agency take issue with a decision of the Supreme Court,” Garaufis said to the government’s lawyer during a virtual scheduling conference on Aug. 13, according to the transcript.
Garaufis added: “It undermines the rule of law.”