DACA In the Trump Era: The Path Forward

by Neil Jiang

Background:

The Deferred Action for Childhood Arrivals (DACA) was a program created by the Obama administration in June of 2012 under the purview of the Department of Homeland Security (DHS). DACA is intended to protect undocumented immigrants who arrived in the United States as children (DREAMers) by preventing their deportation and providing them with work authorization, a social security number, and other benefits that allow them to live safely in the United States. However, it is important to note that DACA status is not a permanent legal status, and instead requires a renewal every two years. Additionally, DACA recipients are not eligible for a multitude of federal programs, such as federal student aid, medicaid, or protection under the Affordable Care Act until recently. Because of DACA, over 830,000 adults have received work authorization with 340,000 employed in essential jobs, according to DHS. DACA has also enabled the pursuit of higher education, with 49% of DACA recipients having some sort of college education. 

To become eligible for DACA individuals must meet the following criteria: 

• Came to the United States under 16 years of age

• Must be 15-30 years old at time of application

• Must have been continuously present in the U.S. for at least 5 years

• Currently in high school, earned a GED or high school diploma, or have been honorably discharged from any branch of the United States military

• No significant criminal record

• Having continuously resided in the United States since 2007

While these requirements made sense during the Obama administration and throughout the Trump administration, they have slowly become outdated during the Biden administration. Specifically, the requirement that DACA applicants must have been in the United States since 2007 leaves many DREAMers stranded. Though this seems like a straightforward problem to fix, DACA’s legal battles have further complicated the effectiveness of the program.

In 2017, the Trump administration announced the rescission of the DACA program. However, the Supreme Court would rule in Department of Homeland Security v. Regents of the University of California that the Trump administration did not initially provide “a reasoned explanation for its action” and thus, did not adhere to the procedural requirements necessary to end DACA. In lieu of the Trump administration’s failure, the state of Texas, along with a slew of other states, sued the federal government to end DACA in the case of Texas v. United States. In Texas v. United States, Judge Andrew Hanen of the U.S. Southern Texas District Court ruled that DACA was illegal. This ruling prohibited new DACA applications but permitted renewals of those that already had DACA status. So far, over 400,000 applications have been stalled due to this ruling. The Biden administration then appealed the case to the 5th Circuit of Appeals, which ruled with Judge Hanen. Thus, the Biden administration revised DACA and brought it before the court, where Judge Hanen once again declared it illegal. It is now in the 5th Circuit of Appeals, and will very well be appealed up to the Supreme Court of the United States, with SCOTUS having ruled on DACA previously. 

Judicial Rulings:

In Texas v. United States, Judge Hanen outlined multiple reasons why DACA was illegal. The most prominent is that DACA was an overreach of power by the executive branch. In its ruling, the court stated that Congress was the sole proprietor of immigration laws. However, DACA goes against laws passed by Congress such as the Immigration Naturalization Act and other federal statutes. The court also noted that because it is DHS’ job to execute these laws, DHS has what is called ‘prosecutorial discretion’. Specifically, prosecutorial discretion allows DHS some wiggle room to defer action against childhood arrivals, such as not pursuing deportation, which is the first half of DACA. However, DACA also gives work authorization, social security numbers, and other benefits, all of which falls under adjudicative discretion, and thus, is outside the scope of executive power. 

In 2021, Judge Hanen of the U.S. Southern Texas District Court ruled that DACA was illegal, citing a lack of compliance with the Administrative Procedure Act, and undermining laws passed by Congress. Consequently, the Biden administration appealed the case to the 5th Circuit of Appeals, which ruled with Judge Hanen. Thus the Biden administration presented a new DACA, which they believed adhered to the formal rulemaking process. The 5th Circuit of Appeals deferred this review back to the Southern Texas District Court. However, the court, plaintiffs, and defendants all agreed that the new DACA was substantively the same as the 2012 DACA and thus was illegal as it contradicted the intentions of the legislative branch. 

Now the case is most likely to be appealed up to the Supreme Court. Considering the past statements of various current Supreme Court justices, it is very plausible that DACA will be struck down. Specifically, in Department of Homeland Security v. Regents of the University of California, Justices Thomas, Alito, and Gorsuch, dissented that DHS did not have the statutory authority to create DACA, making the program illegal. Moreover, Chief Justice Roberts, in the same case, stated that DACA was not a simple ‘non-enforcement policy’, implying that he shares similar views with previous courts that DACA is outside the purview of DHS’ prosecutorial discretion. 

Legislative Efforts:

• Dream Act of 2023 (S.365)

  • Introduced by Sen. Durbin (D-IL) and Sen. Graham(R-SC)

  • Continues the DACA program

  • Creates pathway to citizenship via extensive background checks and work or educational requirements

  • Can apply for citizenship after obtaining lawful permanent residence for at  least 5 years

  • Referred to the Committee on the Judiciary 

• American Dream and Promise Act of 2023 (H.R. 16)

  • Similar pathway requirements as S.365

  • Repeals Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act which penalizes states that grant in-state tuition to undocumented students based on residency and allows Dreamers to access federal financial aid

  • Allows eligible DREAMers deported under the Trump administration to apply for relief

  • Provides a pathway to citizenship for children that entered as derivatives to their parents’ work visas

  • Referred to the Committee on the Judiciary and the Committee on Education and the Workforce

• DIGNIDAD Act of 2023 (H.R.3599)

  • Very similar to H.R.16

  • Provides funding to CBP for additional personnel

  • Provides funding for border infrastructure and equipment

  • Referred to the Subcommittee on Border Security and Enforcement

Recommendations:

While DACA-based legislation has found bipartisan support, with 83% of Americans supporting it, Congress itself has not shown enough support to pass said legislation. Indeed, Senator Graham, who co-sponsored the Dream Act of 2023, made clear that priorities have shifted, stating: “Fixing DACA is not my concern right now. My concern is regaining control over our sovereignty that has been lost.” Thus, because DACA-based legislation has never found sufficient support in the legislature, the best method to codify it into law would be attaching it to a more comprehensive immigration bill. This is the case with the DIGNIDAD Act of 2023, which not only codifies DACA and creates a pathway to citizenship, it also has other provisions including but not limited to: $25 billion for border security an asylum processing, funds training for American workers and would require immigrants to train at least one American worker, increase high-skilled visas, and supporting American agriculture. However, Republicans infamously voted against a comprehensive bipartisan border security bill earlier this year in order to further President Trump’s talking point on Biden’s border failures. This demonstrates that even more polarizing issues for lawmakers, such as DACA, will likely not be passed until after the 2024 elections. Thus, because of the ever increasing polarized political environment, policymakers should attempt to not bite more than they can chew. For example, while some may initially oppose a pathway to citizenship for DREAMers, codifying the DACA program into federal law, thereby making it judicially viable, would give extra breathing room to current recipients and allow the processing of the over 400,000 applicants affected by the injunction served by the courts. Thus, if a pathway to citizenship faces significant criticism from lawmakers, such provisions should be repealed and saved for later if it means a DACA bill becomes more appealing. 

In the meantime, the Biden administration has announced an initiative that would streamline the process of obtaining a work visa for DREAMers with a college degree. These individuals would subsequently be able to apply for an employer-sponsored green card, also known as permanent lawful residency. This program can reduce the dependency on DACA, creating a fall back program for DACA recipients with a college degree. Members of Congress should petition the Biden administration and the United States Citizenship and Immigration Services (USCIS) to increase operations that inform individuals of this new opportunity and notify eligible DREAMers. A coalition of representatives and senators have done something similar, signing a letter in July to encourage the Department of Health and Human Services to better ensure that DACA recipients are made aware of their recent eligibility to buy insurance from the Affordable Care Act. 

Conclusion:

While the Biden administration and countless others have worked tirelessly to keep DACA through judicial and legislative means, the recent election reveals an unsettling future for DREAMers. Due to President Trump’s past actions and a campaign based on a hardline immigration approach, it is clear that he will try to repeal DACA again through executive action. However, with 4 years of experience under his belt and a more seasoned cabinet, he will likely succeed in following the formal rulemaking process to repeal DACA. In addition, with senate Republicans holding a large majority, the propensity for bipartisanship over tedious issues such as DACA is substantially lower. This is unfortunate as DACA has allowed over 800,000 individuals who entered the country illegally as minors to experience the American dream. Currently, over 830,000 have received work authorization and 49% have obtained some form of college education. 

However, the road to progress has never been easy, nor has it been linear. Policymakers, activists, and NGOs must continue to fight for the rights and dignity of DREAMers. Thus, policymakers should vehemently support the DIGNIDAD Act of 2023, a comprehensive immigration package that creates a pathway of citizenship for DACA recipients as well as codifies the program all while increasing funding for border security. In addition, they should urge the Biden Administration to increase awareness while they still can around its new program involving work visas and employment-sponsored permanent lawful residency for DACA recipients. 

The DACA program was created by President Obama due to inaction by Congress. However, today, the legality of DACA has come under threat due to its creation via the executive branch. It is time for the United States Congress to take this fight head on, through a combination of alternative programs that decrease dependence on DACA, and through comprehensive immigration legislation.