By Katie Spero
On Tuesday, U.S. Attorney General Jeff Sessions announced that the Trump Administration would be rescinding the Deferred Action for Childhood Arrivals (“DACA”) program created by President Barack Obama in June 2012. This impacts almost 800,000 young people present in the U.S. without authorization, often called “Dreamers,” who had been given temporary protection from deportation and work authorization through DACA.
Protection for children who were brought to the U.S. without permanent legal status is not a new issue in U.S. immigration law. Historically, there was a circular flow of immigration across the U.S. Southern border, where individuals would enter the U.S. without authorization to obtain work or reside for a short period of time. Families would often remain separated during those trips, as travel between the U.S. and Mexico was relatively easy.
In the 1990s, the United States began to enact a number of policies and laws aimed at border security, creating incentives for individuals relocate permanently with their families in the United States to avoid repeated risky border crossings. Children of undocumented immigrants were often brought to the U.S. at a very young age. According to a study by UC San Diego professor Tom Wong o the average DACA recipient was brought to the U.S. at the age of 6 and were left without a path to remain lawfully in the country where they were raised and educated.
In 2001, Senators Dick Durbin and Orrin Hatch introduced the Development, Relief, and Education for Alien Minors (DREAM) Act, to address the needs of these children. The DREAM Act would have permitted applicants without status, who entered the U.S. before the age of 16 and continuously lived in the United States for five years, to apply for conditional residency that would eventually lead to a green card. Despite numerous introductions over multiple congressional sessions, the DREAM Act was never successfully passed. Ongoing delays and the inability of Congress to pass legislation related to the DREAM Act prompted the Obama Administration to issue the Executive Order that created the DACA Program in 2012.
Since its inception, DACA has contributed significantly to the U.S. economy. A study by the Center for American Progress estimates that elimination of DACA would cost $433.4 billion in GDP over a decade, and reduce Social Security and Medicare tax contributions by $24.6 billion over the same time period. The Cato Institute’s Center for Global Liberty and Prosperity further estimates that the turnover of DACA employees could cost employers as much as $6.3 billion in turnover-related costs and lower productivity of new hires.
President Trump campaigned extensively on the DACA issue, pledging to eliminate the program once he was elected. After his inauguration, a draft executive order titled “Ending Unconstitutional Executive Amnesties” was leaked to numerous news outlets, indicating a possible path to elimination of DACA. At the same time, President Trump made several positive comments regarding the DACA program and its recipients, and the Administration continued to accept both initial and renewal applications for DACA.
DACA elimination came back into focus othis past June when the state attorneys general of Texas and nine other states sent a letter to Attorney General Sessions, threatening legal action if DACA was not rescinded and phased out. The Trump Administration was given until this past Teusday to make that decision, and eventually capitulated to these demands.
President Trump issued a lengthy statement defending the termination of the DACA program, arguing that the executive order issued by President Obama was “unlawful and unconstitutional and cannot be successfully defended in court.” President Trump stated: “I do not favor punishing children, most of whom are now adults, for the actions of their parents. But that we must also recognize we are a nation of opportunity because we are a nation of laws.”
The rescission of the DACA program this past Tuesday is not immediate. The Trump Administration issued its decision with a built-in six-month “wind down” period, which allows current DACA recipients to keep their work permits, advance parole travel documents, and deferred action grants until they expire. Specific steps to wind down the program will include the following:
• U.S. Citizenship and Immigration Services (“USCIS”) will adjudicate any properly filed initial DACA applications filed on or before September 5, 2017 – any requests received after that date will be rejected.
• USCIS will adjudicate renewal DACA applications and associated work permits for work authorization filed up through October 5, 2017. This allows current DACA recipients with work permits and deferred action grants valid through March 5, 2018, to file renewal applications. Current DACA recipients with work permits and deferred action grants that expire after March 5, 2018, will not be able to renew status.
• USCIS will administratively close any pending DACA-based applications for the advance parole travel documents, and refund filing fees to applicants. No new DACA-based advance parole documents will be issued. Existing advance parole documents for DACA recipients will remain valid, but U.S. Customs and Border Protection (“CBP”) may retain the right to refuse admission to the U.S. for those presenting this kind of travel document.
The rescission of DACA was designed to return the issue of DACA firmly in the hands of the U.S. Congress. Multiple bills in both the House and Senate that provide permanent protection and relief for DACA recipients have widespread support, including a more recent version of the DREAM Act. However, attorneys general from 20 states wrote to the Trump Administration in July 2017 indicating they would defend DACA “by all appropriate means” if the program was ended, and the state attorneys general of New York and Washington attorney generals repeated that vow as late as this past Monday.
Katie Spero is a San Diego immigration attorney.