WASHINGTON — For just over a decade, more than 800,000 young immigrants brought into the country as children have been safe from deportation thanks to an executive order known as DACA.
Former President Barack Obama justified the Deferred Action for Childhood Arrivals program as a “temporary stopgap measure,” needed because of years of inaction by Congress — despite overwhelming public support for Dreamers, who’ve grown up as Americans.
Prospects in Congress remain dim — and the record-breaking surge at the U.S.-Mexico border only makes it harder to envision a breakthrough.
Friday marked one year since a federal judge in Houston ruled the program unlawful, a victory for Texas and eight other states that had challenged DACA. The clamor for Congress to step in has only grown since then.
Business and religious groups are demanding action. “Dreamers,” as they are often called — based on never-passed proposals in Congress called the DREAM Act — have grown increasingly anxious.
The window is closing fast.
An appeals court heard arguments earlier in July. By the time the Supreme Court settles the fate of DACA once and for all, Republicans will probably have regained control of the House. They’ll be in no mood to confer legal status on anyone — not while the Border Patrol is nabbing 7,000 people a day.
“It has just gotten worse and worse,” said Sarah Saldaña, the former U.S. attorney in Dallas who led Immigration and Customs Enforcement under Obama. “I mean, we thought we had an apex in 2014 when the border was being overrun. This makes it look like child’s play.”
More people were caught crossing illegally in May than in any other month in U.S. history.
Republicans accuse President Joe Biden of signaling an open border by trying to reverse former President Donald Trump’s hard-line policies.
Texas Sens. John Cornyn and Ted Cruz led a group of GOP senators on Friday to survey the situation around McAllen and keep up pressure on the White House.
“It’s just a disaster at the border. There’s no Republican — even some of the Democrats — who’s going to vote for amnesty, however sympathetic they might be, while the border is wide open and future DACA Dreamers are being imported illegally by the administration,” said Mark Krikorian, executive director of the Center for Immigration Studies, which pushes to restrict immigration.
The assessment that the border is “wide open” is disputed.
If enforcement was so lax, says the White House and its defenders, how could so many people be caught? Rather, they argue, it’s the remnants of harsh Trump-era policies that force desperate people to wade the Rio Grande or find holes in the fencing — policies barring asylum-seekers from presenting themselves at ports of entry, or turning most away under Title 42, the pandemic-era emergency health order.
“That doesn’t mean that the border is not secure. It means that it’s very much closed. That’s why people try to find other ways to cross. If we were to fix the asylum system and reopen the border, we wouldn’t have that problem,” said Juliana Macedo do Nascimento, deputy director of federal advocacy at United We Dream.
“The border situation is the way it is because Republicans made it so, so that they could have this narrative” about chaos at the border, she asserted, calling it “cynical” to punish Dreamers who have spent most of their lives in the United States for current problems at the border.
Macedo do Nascimento herself could face deportation if DACA disappears. She was 14 when her family moved from Brazil to Southern California in 2001. Now 36, she’s never been back.
Those kinds of tales make the plight of DACA-eligible immigrants the low-hanging fruit of immigration policy. Three-fourths of the public supports granting permanent legal status.
“These are people’s lives,” Macedo do Nascimento said. “A vast majority of the American people really want to see Congress act on this and provide a pathway to citizenship for us.”
Trump tried to terminate DACA in September 2017, asserting that it was the only way to force Congress to enact a permanent solution.
Three months later, he offered a path to citizenship for 1.8 million young immigrants out of an estimated 11 million unauthorized immigrants. But Trump’s price was too high for Democrats: $25 billion for his border wall and other security measures.
For immigrant advocates, it was one of countless examples of Dreamers being used as pawns.
A small bipartisan group of senators has been quietly talking about immigration for a few months.
Many, including Cornyn, were involved in the recent breakthrough on gun violence.
And there are parallels: broad public support for policies opposed intensely by enough voters to deter Republicans from giving ground — on banning assault-style weapons, for instance, or conferring legal status on people brought to the country as kids.
That’s why efforts at comprehensive immigration reform failed under President George W. Bush.
With the border now in chaos, few see much appetite even for a DACA deal.
“Obviously the border situation only hurts, not necessarily because it’s actually related, but because it’s an easy political talking point for people (in Congress) to lean on to avoid taking what they perceive to be a tough vote,” said Laura Collins, director of the economic growth initiative at the Bush Institute in Dallas and former director of immigration policy at the American Action Forum, a center-right policy group.
Guns as template
Republicans accused Obama of overstepping his authority when he created DACA by presidential mandate.
The program has weathered numerous court fights.
Ironically, that has kept pressure off Congress to come up with a more permanent solution.
“As long as DACA remains in place, there just isn’t a lot of political will to do more,” Collins said. “I can’t believe I’m saying it, but it’s tougher than gun legislation. It is hard to see what the path forward is. It’s going to come down to who’s willing to put their name behind it.”
Congress did manage to enact a law this month to curb gun violence, the first such law in a generation.
That may provide a template for immigration, though it took the horrific massacre at a Uvalde elementary school to spur action.
A gunman killed 19 children and two teachers.
Cornyn led the GOP negotiating team. The new law provides billions of dollars to bolster mental health access and improve school security. It enhances penalties for gun trafficking and adds juvenile records to background checks for gun buyers under 21. And it encourages states to adopt red flag laws that allow courts to take guns from people deemed dangerous.
Yet it took Uvalde to catalyze action on guns, after years of mass shootings at schools went unanswered by Congress.
Cornyn has paid a price, jeered at the state GOP convention amid allegations he had sold out the Second Amendment.
What sort of crisis might catalyze progress in Congress?
Judge Andrew Hanen, the George W. Bush-appointee who ruled DACA unlawful a year ago, set the legal steps in motion. His order stopped the Biden administration from processing new applicants, though current enrollees have been able to renew their two-year work permits.
A three-judge panel at the 5th U.S. Circuit Court of Appeals heard arguments earlier this month.
“This case was filed to take advantage of the overt hostility of the Trump administration toward DACA,” Thomas Saenz, president and general counsel of the Mexican American Legal Defense Fund, or MALDEF, said afterward, denouncing Texas’ “xenophobic leadership” for trying to kill DACA.
Texas Attorney General Ken Paxton called DACA an example of federal “lawlessness” on immigration that has squeezed state taxpayers.
At the Supreme Court, the 6-3 conservative majority is unlikely to look favorably on the Obama-era program.
“They could end it pretty abruptly,” said Kristie De Peña, vice president for policy and director of immigration at the Niskanen Center, a libertarian-leaning think tank. “That’s probably the only thing that really creates some urgency.”
That won’t happen before the November midterms.
At that point, Democrats may not even have the leverage to enact a bare-bones version of DACA.
“If all of the pollsters are accurate … the opportunity to pass something is going to shrink pretty rapidly,” De Peña said.
“We need to be thinking much more narrowly about protecting this really small group of folks that really do enjoy bipartisan support. If the alternative is that people are going to start being deported, that’s better than the status quo,” she added.
Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center, pointed to chronic mistrust in Congress as a major impediment. That, and the fact that Republicans and Democrats simply have conflicting agendas and face different political headwinds.
“People who support the Dreamers are their primary constituents,” she said of Democrats, but for Republicans, “They’re more sympathetic, but it’s still legalization.”
Krikorian, from the restrictionist Center for Immigration Studies, argued DACA recipients could have gotten green cards by now, if Democrats had been willing to horse trade for tougher enforcement.
He foresees fierce resistance to any legislation that only provides relief to the DACA cohort.
“All you’re doing is kind of bailing out the boat without plugging the hole. That shouldn’t happen as a policy matter and won’t happen as a political matter, if that’s all there is to it,” he said.
Saldaña, the ICE director under Obama, pointed to complex, chronic factors in Central America and other countries that have put so much pressure on the border. Whatever the causes, though, “they’re coming in droves,” she said. “This is a uniquely difficult situation right now.”
That leaves her deeply pessimistic about the prospects for progress on DACA.
“That is one of those killer issues. You do anything as a Republican to assist any immigrant and it’s a death knell. It’s poison,” she said. “I remember saying this when I was director: Let’s just get past this midterm election. Let’s get past this presidential.
“It’s not going to happen. Not in our lifetimes,” she said.
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