In the cruel game that the Deferred Action on Childhood Arrivals program — DACA — has become, its recipients have had some walks, base hits and home runs. But they now are at grave risk of being struck out. And that would be a terrible outcome.
The conservative Fifth District Court of Appeals in New Orleans heard arguments last week seeking both to save DACA and to kill it. The program, created by President Obama in 2012, protects from deportation some young people who, as children, were brought to the United States illegally by their parents or other adults. DACA, rightly, also grants them work permits when they’re of age.
The rationale: As young children and teens, they had no choice but to accompany their families. Why punish them by forcing them to leave the country where they have spent most of their lives?
It’s a sound argument that might end up on the losing side. It shouldn’t.
To receive protection under DACA — which recipients must renew every two years — immigrants had to meet three narrow requirements: They had to be under 31 years old on June 15, 2012, the date Obama announced his executive order. They also had to be younger than 16 when came to the United States and have lived here since 2007.
Advocates say that there are about 650,000 DACA recipients in the country. Government data says that another 92,000 are seeking to apply for the first time — but can’t, because new applications are frozen.
Don’t end it
The Herald Editorial Board has always supported DACA, citing the cruelty of deporting this particular class of undocumented immigrants, possibly separating families from children who subsequently were born in the United States and therefore, are U.S. citizens. Myriad studies have detailed how DACA recipients — so-called DREAMers — have enhanced communities across the country, through working, often in essential, front-line jobs; signing up for military service; paying taxes. According to the Florida Policy Institute, in 2018, DREAMers contributed almost $78 billion in taxes in this state alone. Besides the inhumane aspect of ending DACA, is this another loss the state — and nation — wants to sustain?
We’ve also clamored for Congress to step in and protect this one small cohort of undocumented immigrants, especially in the face of lawmakers’ failure to confront broader immigration reform. Last year, a new Biden administration buoyed hopes.
“There have been efforts for a long time to move forward in various iterations and to adopt legislation that would put DACA on a stronger footing,” Andrew Pincus, a Washington-based attorney who represents businesses that support DACA, told the Editorial Board. “Last year, the American Dream and Promise Act passed the House, but it has not moved in the Senate.”
The Promise Act provides “conditional permanent resident status for 10 years to a qualifying alien who entered the United States as a minor and (1) is deportable or inadmissible, (2) has deferred enforced departure status or temporary protected status (TPS), or (3) is the child of certain classes of nonimmigrants.” There are additional requirements to qualify.
DACA has had a tortured history in both the courts and at the executive level. Brace yourselves and try not to get whiplash:
In 2014, several states sued when Obama sought to expand DACA, and in 2016, the U.S. Supreme Court, deadlocked — Justice Antonin Scalia had died earlier that year. In 2017, the Trump administration said it would phase out DACA, giving Congress six months first to come up with its own alternative. Congress, of course, did nothing.
Several lawsuits
By that time, in 2018, however, several district courts already had issued injunctions to phasing out the program; that same year, district court Judge Andrew Hanen, of the Southern District of Texas, found DACA likely to be unconstitutional, but he let the program continue, as litigation still lingered in the courts.
In 2020, the Supreme Court upheld injunctions on phasing out the program, terming it arbitrary and capricious. Interestingly, the court gave the federal government the go-ahead to find a better argument for ending the program.
Joe Biden, on his very first day as president, Jan. 20, 2021, reinstated the program. But in July of that year, Hanen, from Texas, determined that DACA violated the law, blocking the government from accepting new applications, while still letting current recipients keep their protections and apply for renewal.
Which brings us to the impending decision by the Fifth District Court of Appeals.
While DACA opponents argue that there is no statutory basis for the program, attorney Pincus classifies DACA as a long-recognized concept called “deferral of removal.”
“There has to be prioritization,” Pincus told the Board. “The government has said, ‘We’re going to not focus on removal with respect to you. We will focus, for instance, on criminals’ ” for deportation.
Victims of torture, for instance, have also been granted such deferral.
“If you grant deferral of removal, people are eligible for work permits,” Pincus says. “It’s a very rational structure. The alternative is the underground economy.”
No matter which way the Fifth District rules, DACA’s constitutionaIity likely is headed to the Supreme Court. Meanwhile, people who have been good for this country will face more uncertainty, if not outright expulsion. That would be wrong.
The Senate can make this right, by supporting the American Dream and Promise Act.
