The Supreme Courtroom has saved DACA alive in the meanwhile. Dreamers nonetheless have a protracted option to go.
The Supreme Court's decision to keep the Deferred Child Arrival Program alive is a victory for hundreds of thousands of unauthorized immigrants who came to the United States as children. But it is a temporary victory – far from the lasting protection they have been waiting for for almost two decades.
The unexpected decision may have assured DACA recipients that they could continue to live and work in the United States without fear of being deported for another day. But their victory is pretty tight legally, and there is plenty of room for Trump to end the program, which protected around 670,000 DREAMers.
The judges wrote in their opinion that Trump should formulate a more robust justification for the termination of the program. He already claims on Twitter that he still wants to end DACA, but it is unlikely that he could do so before the presidential election or even before the inauguration day in 2021.
But if Trump wins a second term, time would be on his side. And even if he leaves office, DREAMers, including those who have been waiting for a long time to apply for DACA, can still be assured of their right of residence in the United States if Congress intervenes.
Given that DACA has been the subject of a controversial legislative debate for almost a decade, policy experts do not hope that the next few months before the presidential election will be the right time to do so.
"The status of DACA beneficiaries remains subject to the whims of the executive," said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Institute. "It's been like this since 2012. It's past."
Trump can still try to end DACA
Trump suggested in a tweet Thursday not to give up his efforts to end the program:
As President of the United States, I call for a legal solution for DACA, not a political one that is compatible with the rule of law. The Supreme Court is not ready to give us one, so we have to start this process all over again.
– Donald J. Trump (@realDonaldTrump), June 18, 2020
It is not clear what "starting this process from scratch" could mean.
One possibility is that the administration tries again to end the program in the same way as in 2017: the Department of Homeland Security could issue another memo. Trump could also issue an order to end DACA. But both methods would likely be quickly challenged and blocked in a federal court, said Stephen Yale-Loehr, a professor at Cornell Law School. Whether and how quickly the administration can defend its appointment policy remains open.
The judges, in their opinion, wrote that if the administration wanted its decision to survive in court, it would have to consider why it decided not to partially withdraw protection for DACA recipients, such as: take away their work permits, but still protect them from deportation. It is not clear whether the Trump administration is interested in withdrawing its protection, but it would still be devastating for DREAMers to lose their ability to work in the United States.
The administration should also consider why the interests of DACA beneficiaries who have relied on the program since 2012 do not outweigh the interests of the administration in ending the program. DACA recipients have been resident in the United States for years – some arrived before they were old enough to remember – and graduated here and started careers and families. The Trump administration, on the other hand, has raised concerns that DACA could face a lawsuit because it claims the program was created illegally through executive measures.
Alternatively, the administration could try to terminate DACA through the regulatory process, which would place the termination on a stronger legal basis. However, the whole process could take months, if not years, to require officials to draft and publish a proposed rule, to get comments from the public, and to address those comments before they publish a final rule.
"Neither option is likely to end the DACA program before the November presidential election," said Yale-Loehr. “That makes the choice even more important than before. If President Trump wins the reelection, he has another four years to try to end the DACA program. "
Former Vice President Joe Biden, the alleged Democratic presidential candidate, said he would reinstate DACA in his election and would send Congress a bill that would offer DREAMers a path to citizenship.
The big question now: will the Trump administration accept new DACA proposals?
Approximately 66,000 people have qualified for DACA since 2017 when the Trump administration stopped accepting new applications for the program due to ongoing legal challenges. These young immigrants have been waiting for their chance to apply for the program, but it is not clear whether the Trump administration will accept new applications after the Supreme Court decision.
The U.S. citizenship and immigration authorities responsible for DACA applications and renewals must issue guidelines for the implementation of the Supreme Court decision. The agency declined to comment on its intentions on Thursday.
California Attorney General Xavier Becerra, who was involved in the DACA case before the Supreme Court last fall, told the Washington Post: "Anyone who qualifies as a DREAM under DACA should be allowed to participate in the program."
In the meantime, immigration lawyers nonetheless point out that those entitled to DACA – those born after 1981 and arriving in the U.S. before the age of 16 – do not have a disqualifying criminal conviction, either at school or at Are military or have graduated from high school – submit your applications.
Congress is under pressure to act, but the ball is in Trump's yard
Democrats have long fought for permanent protection for DREAMers, which goes back to the first version of the DREAM law introduced in 2001. Such measures are still widespread on a cross-party basis. According to a recent poll by Politico / Morning Consult, 69 percent of Trump voters even support the protection of DREAMers. But again and again, related laws have reached a known dead end: Democrats insist on a clean law that protects DREAMers, while in turn, Republicans call for stricter border security measures.
Trump's next move will likely determine the urgency of the ongoing political debate in Congress.
"If the government sits on it, Congress would have no need to act as the program will continue," Cardinal Brown said. "If he starts the process of ending DACA again, it puts some pressure on Congress, especially if the majority in Congress wants DACA recipients to retain their status."
It is not yet clear what Trump could ask for in return for permanent protection for DACA. Since announcing his decision to end the program in 2017, he has already achieved many of his immigration policy priorities, including funding the border wall, restrictions on legal immigration, and an almost complete closure of the southern border asylum. Additional immigration restrictions could be a difficult pill for Democrats.
Democrats may also be tempted to wait until after the presidential election to return to the negotiating table if Trump delays the DACA, Cardinal Brown said. If Biden wins the presidency, the Lame Duck session may open up more palatable opportunities to negotiate with Republicans.
Senator Dick Durbin, a Democrat and longtime advocate of DREAMers, did not seem to hope that Congress could adopt permanent protection for DREAMers in the coming months, and asked the Senate Trump on Thursday to give Congress time, "our contribution afford to".
"I'm calling the President and his area – I ask them – let's give these DACA protectors by the end of this year … until after the election," he said.
In the meantime, democratic leaders are pushing for existing proposals to help DREAMers.
"We are celebrating today, but tomorrow we will continue to fight for permanent protection of the dreamers," said Joaquin Castro, chairman of Hispanic Caucus (CHC) in Congress, in a statement on Thursday. “The Supreme Court ruling is a wake-up call for Senate congressional action. … President Trump has broken his promise to protect dreamers, and I expect his government to commit more atrocities. "
The Dream and Promise Act passed by the Democratic-controlled house in June 2019 is one of the priorities of the Democrats. It provides a path to citizenship for approximately 2.5 million DREAMs and other immigrants with temporary legal status (the original DREAM law was stricter and affected approximately 1.5 million people). Senate majority leader Mitch McConnell said he was unlikely to allow a vote in the Republican-controlled chamber.
The CHC is also asking the Senate to vote on the latest coronavirus support package, known as the Heroes Act, which automatically extends the work permit of DACA recipients. Many DACA recipients are considered indispensable workers. 27,000 of them treat patients at the forefront of the pandemic as naturopaths or medical assistants.
However, these proposals have little hope of being passed in the Republican-led Senate.
"I'm still very nervous for these DACA recipients because it's not over yet," Cardinal Brown said. "I think that Congress always breathes a sigh of relief when a political problem with hot potatoes is discussed, but it doesn't buy them that much time."
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