The End of DACA

Introduction to DACA

Deferred Action for Childhood Arrivals (DACA) was signed as an executive order by former President Barack Obama on June 15, 2012. It was aimed at providing temporary work permits to people who met the following criteria:

  • You came to the United States before reaching your 16th birthday
  • You have continuously resided in the United States since June 15, 2007, up to the present time
  • You were under the age of 31 as of June 15, 2012
  • You entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012
  • You are currently in school, have graduated or obtained your certificate of completion from high school, have obtained your general educational development certification, or you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
  • You have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat
  • You were present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS

Proponents of the idea to provide illegal immigrants with legal status and a path to citizenship criticize DACA as being too narrow in scope, while its opponents do not approve of it simply because an illegal immigrant is in the United States illegally and therefore should be deported to their country of citizenship or origin regardless of how long they have been to the United States. And while proponents justify their opinion on the issue on the grounds that childhood arrivals came to the United States to no fault of their own but because their parents made a mistake, opponents counter it by saying that children always suffer the consequences of their parents’ actions. Opponents would give an extreme example (extreme on purpose – so that the point is as convincing as possible) similar to the following:

If a father of a daughter murders an individual (for example, a first-degree murder which is premeditated), the law says that that father should go to prison for life or be executed, depending on the state where the crime was committed. Either way, if justice is to be served, his daughter will forever be negatively impacted by the fact that she will never be able to have her father wake her up in the morning, put her to sleep at night, or help her with daily activities or just be with her anywhere at all.

As noted on the Department of Homeland Security’s website, DACA was expanded by a new memorandum by DHS on November 20, 2014 (Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)) to include illegal immigrants of a larger age range to seek work authorization, and it also expanded the deferred action and work authorization from two years to three years. However, before it was implemented DAPA was successfully challenged by twenty-six states led by Texas, as the U.S. Court of Appeals for the Fifth Circuit blocked it on the grounds that DAPA was not compliant with relevant authorities (implementation would not be through notice-and-comment rulemaking). The case was later brought to the U.S. Supreme Court which ruled in a 4-4 ratio at a time when there was one vacant seat at the highest court due to Justice Antonin Scalia’s death. The 4-4 tie meant that the decision of the U.S. Court of Appeals stayed.

President Donald Trump Rescinded DACA: Implications

On September 5, 2017, President Donald Trump announced what the administration refers to as “the orderly phase out of the program”. While few people paid attention to all of the facts, the choice of that day by President Trump to rescind DACA is likely due to a letter sent by Texas and other states to Attorney General Jeff Sessions where the group threatened to sue the federal government if by September 5, 2017 DACA is not phased out.

The rescission includes “a limited, six-month window during which [the Department of Homeland Security] will consider certain requests for DACA and applications for work authorization, under specific parameters”.

The emphasis should be on the six-month window. On September 6, 2017, President Trump stated that “Congress, I really believe, wants to take care of this situation,” while the Speaker of the U.S. House of Representatives Paul Ryan supported his decision on the grounds that former President Barack Obama – in initiating DACA – overstepped his constitutional boundaries. Speaker Ryan added that “lawmakers would work in the coming months to find a compromise in how to protect the undocumented immigrants from being deported.” Encouraging news to the so-called Dreamers is that Speaker Ryan described them and the issue as “a symptom of a larger problem”, while also emphasizing on a “compromise”, a word to describe bipartisanship in Congress. The “larger problem is that we do not have control of our borders. And so it’s only reasonable and fitting that we also address the root cause of the problem, which is borders that are not sufficiently controlled, while we address this very real and very human problem that’s right in front of us.” Speaker Ryan’s statement suggests that all undocumented immigrants – not just Dreamers affected by the rescission of DACA – will witness a bipartisan immigration reform that will allow them to stay in the United States and potentially provide them with a path to citizenship.

The sense of upcoming bipartisanship in the six-month effort created for Congress by President Trump is further suggested by reactions from the other side of the aisle, particularly the Democratic leadership in the Senate and the House of Representatives. Senator Richard Durbin (D – IL) indirectly said to President Trump that “if you love the Dreamers, help us pass the Dream Act” and Senate Majority Leader Charles Schumer (D – NY) urged the Republican leadership to “immediately put the Dream Act on the floor for a vote,” while House Minority Leader Nancy Pelosi (D – CA) allegedly called on President Trump to send a tweet that would calm Dreamers down: “For all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about – No action!”, President Trump said in a tweet.

Political Situation

The Dream Act of 2017 is currently at a starting position (just introduced). It was introduced by Senator Lindsey Graham of South Carolina (a Republican), and is currently cosponsored by six Democrats (Dick Durbin, Chuch Schumer, Catherine Cortez Masto of Nevada, Diane Feinstein and Kamala Harris of California, and Michael Bennett of Colorado) and three Republicans (Jeff Flake of Arizona, Cory Garner of Colorado and Lisa Murkowski of Alaska) in the Senate. In order to reach President Trump’s desk for his signature it has to pass the Senate and the House of Representatives.

Senate

If the filibuster rule does not end up being used in the Senate, and assuming that all 46 Democrats and 2 independents (who caucus with the Democrats) support the passage of the Dream Act, the four Republicans in support of the bill (Senator Graham and the three cosponsors) are sufficient for the bill to pass in the Senate. However, if the filibuster rule is planned to be used in the Senate, eight more Republicans will be needed to block the filibuster, while those eight Republicans do not necessarily have to support the bill. The bill will be discussed at the Senate Judiciary Committee on September 13 at 10am.

House of Representatives

A simple majority will be needed in the House of Representatives for the passage of the bill: 218 voting members. In the 115th Congress, the House of Representatives consists of 194 Democrats and 241 Republicans. Therefore, if all Democrats vote in support of the Dream Act, it will need at least 24 Republicans to pass the lower chamber.

In Brief: Dream Act of 2017 for DACA Recipients

Looking at the current bill, Section 3 provides both deportable aliens with no criminal history who arrived in the United States before they turned 18 years of age (paragraph 1 under subsection B) and DACA recipients (paragraph 4 under subsection B) with the status of “lawfully admitted for permanent residents on a conditional basis”. Some of the exceptions include physical presence outside the United States for more than 90 consecutive days or for an aggregate of more than 180 days over a one-year period (subsection C). The conditional basis lasts 8 years (Section 4, subsection A, paragraph 1) by which time, as implied under subsection D, paragraph 1 (“return to the immigration status that the alien had immediately before receiving permanent resident status on a conditional basis or applying for such status”), the individual should have applied and potentially received an unconditional permanent resident status.

Conclusion

Considering the imminent lawsuit against the federal government, it is difficult to criticize President Donald Trump for rescinding DACA. Considering that DACA was a temporary solution to the issue surrounding childhood arrivals – due to parents’ decision to cross the border illegally or overstay their visa – that is, at no real fault of their own, and considering that it is a matter that has to be decided by Congress, one might argue that President Trump’s decision to rescind DACA is the exact opposite: a practical decision at the best possible time with little repercussions to the federal government. The only individuals currently hurt by President Trump’s decision are people who did not manage to apply for DACA before September 5. They will have to wait and hope for a passage of the Dream Act. DACA recipients’ worries depend on the timing of the expiration date of their authorization to legally work in the United States and the potential passage of the Dream Act.

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Filed under Politics, The Law

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