Originally Published in Vox
Nicole Narea - July 28, 2020
DREAMers are facing limbo yet again as Trump explores ending DACA for a second time.
The Trump administration announced Tuesday that it is considering trying again to end the Deferred Action for Childhood Arrivals (DACA) program and will not be accepting new applications from immigrants who hope to gain its protections, throwing the future of hundreds of thousands young immigrants who came to the US as children into doubt.
The Supreme Court ruled on June 18 that President Donald Trump couldn’t end the program, which has allowed almost 700,000 unauthorized immigrants known as “DREAMers” to live and work in the US free from fear of deportation, without a more robust rationale. In the weeks since that decision, the administration had remained silent as to whether it would consequently start accepting new applications for the program, causing confusion among those who have been waiting for years for a chance to apply.
Chad Wolf, the acting secretary of Homeland Security, clarified Tuesday that the administration is reviewing the policy further and may well move forward with ending the program. In the meantime, it will impose new restrictions on applicants — a move that immigrant advocates say is a blatant violation of the Supreme Court’s decision.
That review will examine the legality of the DACA program, which former President Barack Obama created via executive order in 2012, and its impact on immigration trends, a senior administration official told reporters.
“I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission,” Wolf wrote in a policy memorandum issued Tuesday. “At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration.”
In the meantime, the administration will reject all new DACA applications and related applications for work permits, as well as halve the period for which renewals will be valid from two years to just one year. It will also reject most new and pending requests for advanced parole, which allows DACA recipients to travel outside the US for humanitarian, education, or employment purposes.
The decision makes DACA a key immigration issue in this fall’s presidential election. It’s not likely that the Trump administration could end DACA entirely before the election or even Inauguration Day in 2021. But if Trump wins a second term, time would be on his side. And even if he leaves office, the only way that DREAMers, including those who have long waited for a chance to apply for DACA, can get assurance of their right to remain in the US is if Congress intervenes.
The DACA program remains popular among both Republicans and Democrats: even 69 percent of Trump voters support protections for DREAMers, according to a recent Politico/Morning Consult poll. But the move suggests Trump is again resorting to restrictive immigration policies as a means of rallying his base.
Former Vice President Joe Biden, the presumptive Democratic nominee, has vowed to restore DACA and resume accepting new applications. He would also try to work with Congress to pass permanent protections for DREAMers.
“Make no mistake, the vast popularity of the program, combined with a looming election, prevented Trump from immediately ending the program,” Andrea Flores, deputy director of immigration policy for the American Civil Liberties Union, said in a statement. “But this policy memo makes his intentions clear: His next move is a complete end to the DACA program to destroy the lives of Dreamers once again.”
Immigrant advocates say Trump is obligated to accept new DACA applications
Most people who are granted DACA maintain their status for two years, after which they can apply to renew in additional two-year increments indefinitely. They typically apply while they are still in school or after graduating from high school so that they can obtain a work permit and get a job or attend university.
Immigrant advocates have argued that the Trump administration has been openly defying the Supreme Court’s decision and other court orders, issuing rejection notices to those who tried to newly apply for DACA status. (It has been accepting renewals.)
Lawyers for DACA recipients who had challenged Trump’s initial decision to end the program back in 2017 recently told a New York federal judge that they were concerned that administration officials were ignoring the Supreme Court’s “unambiguous decision and their legal obligations” in refusing to process new applications. And House Democrats Zoe Lofgren and Jerrold Nadler penned a letter to Trump claiming that his failure to resume processing new DACA applications constituted “illegal usurpation of authority in violation of the separation of powers.”
A federal judge in Maryland ordered the Trump administration on July 17 to begin processing new applications, finding that the Supreme Court’s ruling restored the program to its status before Trump tried to terminate it in September 2017.
US District Judge Ryan Grimm didn’t set a deadline for the administration to comply, but he is moving forward with a hearing addressing the question of whether he should hold the administration in contempt. And in a recent telephonic briefing, he criticized the administration for failing to clarify its policies with regard to new DACA applications in a timely manner.
“It creates a feeling and a belief that the agency is disregarding binding decisions by appellate and the Supreme Court,” he said. “There is a cost for not having these things clarified, and the plaintiffs have borne the lion’s share of that cost thus far.”
But a senior administration official said Tuesday that Grimm didn’t have the final say given that there remains pending litigation over new DACA applications in other federal courts.
Trump could rescind DACA without Congress’s help
Following the Supreme Court’s ruling, Trump claimed that he still wanted to end the program and would submit new paperwork backing up that decision. He accused the justices on Twitter of punting the DACA issue, which has been the subject of contentious legislative debate for the better part of a decade.
It’s not clear exactly how he intends to end the program. He could do so without Congress’s help, but he said during a press conference at the White House on Tuesday that he also intends to work with Congress on creating a “merit-based system” for immigration. He didn’t elaborate further on what that meant, but he has previously described such a system as one that prioritizes high-earners and skilled workers over those with family ties to the US.
The administration could terminate DACA using the same method it employed in 2017: The Department of Homeland Security could issue another memo. Trump could also issue an executive order terminating DACA. But either method would likely be challenged and swiftly blocked in federal court, said Stephen Yale-Loehr, a professor at Cornell Law School. Whether, and how quickly, the administration could defend its policy on appeal remains an open question.
The justices wrote in their opinion that if they wanted their decision to survive in the courts, the administration would have to address why it decided not to partially roll back protections for DACA recipients — such as taking away their work authorization but still shielding them from deportation. It’s not clear whether the Trump administration has any interest in more narrowly revoking their protections, but even so, it would be devastating for DREAMers to lose their ability to work in the US.
The administration would also have to address why the interests of DACA recipients, who have relied on the program since 2012, do not outweigh the administration’s interests in terminating the program. DACA recipients have been settled in the US for years — some arriving before they were old enough to remember — and have earned degrees and established careers and families here. The Trump administration, on the other hand, has expressed concern that DACA could face litigation because it alleges the program was created illegally via executive action.
Alternatively, the administration could try terminating DACA via the regulatory process, which would put termination on stronger legal footing. But the entire process could last months, if not years, requiring that officials draft and issue a proposed rule, solicit comments from the public, and address those comments before publishing a final rule.
“Neither alternative is likely to terminate the DACA program before the presidential election in November,” Yale-Loehr said. “This makes the election even more important than before. If President Trump wins reelection, he will have another four years to try to terminate the DACA program.”