After roughly eight months in office, President Trump is leaning toward ending the Deferred Action for Childhood Arrivals program, the Obama-era program shielding undocumented immigrants who came to the United States as children from deportation and allowing them to work legally in the country, Politico reported on Sunday night.
Multiple outlets reported that the decision is not yet final; the president will meet again with advisers on Monday, ahead of Tuesday’s announcement.The move would not take effect for six months, a window designed to give Congress time to find the legislative solution it has thus far proven unable to enact.
The DACA program, announced by President Obama in June, 2012, provided recipients with protection from deportation for two years, which could be renewed, and allowed them to work. To qualify, applicants had to have entered the country before the age of 16 and lived in the United States since 2007. Today, nearly 800,000 immigrants benefit from the program.
Trump’s decision follows weeks of internal deliberations. Trump has wavered on his position on DACA, saying he would “immediately terminate” the program on the campaign trail, while expressing sympathy for the group once in office. During his administration, U.S. Citizenship and Immigration Services has also continued to grant work permits to thousands of undocumented immigrants, to the frustration of immigration restrictionists and Republicans who argued Obama lacked the authority to implement the program in the first place.
Tuesday’s anticipated announcement is a direct response to Texas Attorney General Ken Paxton and other state attorneys general, who threatened to take the administration to court if they didn’t sunset the program by September 5. Administration officials had reportedly considered asking for an extension of that deadline as they decided what to do.
It’s not the first time DACA has been met with legal challenges. In 2014, Obama expanded DACA and rolled out a new program called Deferred Action for Parents of Americans, or DAPA, prompting 26 states to sue the administration in an attempt to halt the programs. In 2016, in a 4-4 ruling, the Supreme Court blocked the expansion of DACA and kept DAPA from taking effect.
Earlier this month, more than 100 law professors signed a letter to Trump arguing “that the executive branch has legal authority to implement” DACA. Still, it was unlikely that the administration would go to court over the program given that they’d be in a position to defend it.
The president’s decision is likely to appeal to his base, which has supported his immigration agenda. It’s unclear whether the administration will continue to process renewals and new permit applications, potentially leaving the future of hundreds of thousands of undocumented immigrants in the balance. Without the protection of the program, they’re eligible for deportation, raising the same question the Obama administration grappled with years ago: How do you address the segment of the population who entered the country illegally with no say of their own and otherwise have no criminal record?
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Obama’s election in 2008 was a watershed moment for immigrant advocates. For years, supporters of immigration reform had been pushing for legislation to help undocumented youth brought to the country illegally by their parents obtain legal status. But time and again those efforts fell through. Obama, who had campaigned on the promise of immigration reform, gave advocates a new sense of hope.
“In that wave of confidence, it’s really easy to shed some of your fear because now you know that you at least have a president who’s not out there, despite the fact that federal law still exists, he’s not actively pursuing you as a priority for deportation,” said Juan Escalante, the digital campaigns manager at America’s Voice and a DACA recipient.
“It was a shift in many ways from the past, which was mainly closed-door meetings and members of Congress sharing our stories sometimes with different names, or covering our faces with media, etc.,” said Cristina Jimenez, the executive director and co-founder of United We Dream, the largest immigrant-youth organization in the country.
Immigrant advocates had been putting pressure on Congress to pass the DREAM Act, a measure first introduced in 2001 that would allow undocumented immigrants who attend college or serve in the military to eventually gain legal status. Chances of passing legislation seemed promising under Obama, a supporter of the Dream Act, and a Democratic-controlled Congress. Its failure would mark a turning point in the fight to shield undocumented immigrants from deportation.
Shortly after Obama took office, immigrant advocates were disillusioned to see the number of deportations creep up. According to the Department of Homeland Security, Immigration and Customs Enforcement removed nearly 390,000 people in fiscal year 2009, more than any previous president. In 2010, ICE Director John Morton released a memo outlining priorities for enforcement with the goal of directing resources toward those who were seen as a threat to public safety.
For the administration and advocates, 2010 proved a pivotal year. Immigration reform up until that point had been largely sidelined as the president focused his attention on passing a health-care reform bill. Activists and lawmakers slammed Obama for not trying harder to fix the country’s immigration system. Later that year, the president lobbied for the DREAM Act, but to no avail. The measure received majority support in both houses of Congress, but fell short of receiving the needed votes to avoid a Senate filibuster, effectively killing the bill. Obama later conceded that the vote was “maybe [his] biggest disappointment.”
The failure of the DREAM Act prompted a strategic shift among the immigrant advocacy community. “Our calculation was that Obama promised this to our people, he made this public commitment when he ran for president, and we assumed that it would be one of his campaign issues,” recalled Jimenez. “We also knew the path forward for legislation wasn’t there from our analysis.”
In June 2011, Morton pushed out another directive that gave the agency authority to exercise prosecutorial discretion, that is, to prioritize certain undocumented immigrants for deportation while deprioritizing others. The department’s hope was that it would alleviate the pressure on the nation’s immigration-court system, which was already experiencing a backlog, as well as help identify the cases that fit the deportation priorities, said former Department of Homeland Security Secretary Janet Napolitano.
But problems persisted, advocates’ rallying cry got louder, and DHS continued to find itself the target of criticism. “There’s widespread belief—and the recognition within the administration—that we haven’t achieved all of our goals yet on immigration. We rolled out some critical and huge policies, but we’re still a long way from this kind of situation where we want to be where we’re an enforcement system exclusively focused on criminals and border security,” recalled John Sandweg, the former senior counselor to the secretary, adding that policy changes take awhile to settle in.
In late 2011, Napolitano announced that the department would review the 300,000 pending deportation cases in the immigration-court system. “Immigration judges will be able to more swiftly adjudicate high priority cases, such as those involving convicted felons," Napolitano wrote in a letter to Senator Dick Durbin, who, along with Senator Richard Lugar, had implored the secretary to stop the deportation of immigrant students. But like prior efforts, the case-by-case review also fell short of expectations.
One of the core issues was that offers of administrative closure didn’t include a work-authorization card. Durbin criticized that component of the policy during a questioning of Napolitano at a Senate Judiciary Committee hearing in April 2012. “You’re saying to qualified individuals that they will not be deported, but they can’t work to support themselves and their families,” he said.
The pressure to act grew more intense over time. Napolitano herself had begun to ruminate on the idea of administrative relief after the DREAM Act didn’t pass Congress. “It was shortly after that I concluded the Congress was unlikely to act—and that for a lot of reasons—it would make sense to revisit the idea: Could we do something administratively for this group?” she said.
In early 2012, Napolitano tasked her team with providing new ideas that went beyond the case-by-case review, which had up until that point resulted in a number of offers but very few acceptances. The team came back with the idea of using a type of prosecutorial discretion, deferred action, to shield undocumented immigrants brought to the U.S. as children identified in the case-by-case review from deportation. Napolitano’s response struck some of those in attendance.
“Why not all the Dreamers?” she asked, using the same term immigrant advocates use to refer to the population that would have been shielded under the DREAM Act.
“Although now, at least for those who support, it’s thought to be an obvious thing to do, it’s certainly not the way it felt at the time. For her to be really bold like that was really impressive,” said Seth Grossman, the deputy general counsel to the department, who was at the meeting.
“I was floored,” Sandweg said.
Separately, the White House had been weighing the possibility of deferred action as well, said Cecilia Muñoz, the director of the White House Domestic Policy Council under Obama. “We were on hold because we were not confident that we could take a huge proposal like that to the agency and expect it to be carried out,” Muñoz said. The White House was weary about any perception of interference with DHS operations. Staffers were relieved then when Napolitano presented a memo proposing deferred action for the “Dreamers” to the White House in late May.
“The work on the White House end was already done,” Muñoz said. “We had already kicked the tires pretty hard on something quite similar. The reason that we were holding back was because we weren’t sure how the agency would react. When the agency came to us with the same thing that answered that question, so the decision was relatively easy after that.” A memo was sent to the president with the proposal shortly thereafter. His approval kicked off a slew of meetings on its implementation.
There were still a lot of unanswered questions about how it would be carried out. U.S. Citizenship and Immigration Services was tasked with rolling out the program. “We’re speaking [about] an anticipated 10 percent volume increase in the work of the agency,” said former USCIS Director Alejandro Mayorkas.
The plan was kept under wraps so as to prevent any leaks. At DHS headquarters, fewer than 10 people were clued in on the proceedings, Napolitano recalled. At USCIS fewer than five people were looped in. “Prior to June 15, the number of people at USCIS that knew of and were involved in the development were extraordinarily few. It was the morning of June 15 that leadership was filled in,” said a former senior USCIS official.
Behind closed doors, a number of players were making sure that the proposal had the financial and operation backing, as well as legal standing, to proceed. “Within that last week we knew we were moving forward,” said Felicia Escobar, former special assistant to the president for immigration policy.
Just hours before the announcement, White House staffers called activists, lawmakers, and other stakeholders to warn them that something was coming down the pipeline. Finally, on the morning of June 15, Napolitano released a memo announcing the decision expanding the use of prosecutorial discretion for some undocumented immigrants. Hours later, Obama would address reporters in the Rose Garden.
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DACA was never intended to be a permanent solution. Obama addressed this himself in his 2012 address announcing the program: “This is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”
Congress is the only entity that can alter the nation’s immigration laws. Prior to 2012, Obama himself had repeatedly explained his lack of executive action by insisting that Congress alone held the power to address the issue. The announcement of DACA was immediately met with a chorus of critics insisting that it was unconstitutional, and spurring a host of legal challenges.
“I believe that this is something Congress has to fix,” House Speaker Paul Ryan said on Friday. Politico reported over the weekend that Ryan was informed of Trump’s decision Sunday morning. Republicans like Senators Orrin Hatch and Jeff Flake have urged the administration to leave the program alone for now, and allow Congress to provide a permanent solution.
If the administration discards their advice and moves ahead with its plan to cancel DACA, it will add the contentious issue to an already overcrowded congressional calendar. There are 12 Republican cosponsors for a measure in the House that would institutionalize much of the DACA program, and the legislation also enjoys significant Republican support in the Senate. It remains unclear, though, whether the bill could attract enough GOP votes to clear the House, sufficient support to survive a Senate filibuster, or a presidential signature if it does. And already, there is opposition to the bill. Senator Tom Cotton, an immigration hardliner, is insisting that any move to aid Dreamers be coupled to stricter enforcement and the constriction of legal immigration.
So if Trump announces the end of DACA as anticipated on Tuesday, it will leave hundreds of thousands of people in limbo, waiting to see if Congress can achieve consensus on an issue that has long resisted it.