Today, June 15, 2022, marks the 10th anniversary of President Obama's executive order creating what we know as the DACA (Deferred Action for Childhood Arrivals) program. Before DACA was announced on June 15, 2012, hundreds of thousands of students were eager to work, join the military, or continue their education and could not do so because they didn't have legal status. Several valedictorians, salutatorians, and other knowledgeable high school graduates had scholarships retracted from some of our top colleges and universities because they did not have a social security number.
Therefore, on June 15, 2012, when President Obama announced the new program that would change the lives of hundreds of thousands of unauthorized young adults in the United States who arrived in the United States as children, there was reason to celebrate. However, since then, DACA has proven more of a challenge and remains the only large-scale policy change implemented during this period related to the legal status of unauthorized immigrants in the country.
It is essential to understand that DACA was never intended to be a permanent solution. It was a stopgap to provide relief to undocumented immigrant youth after Congress repeatedly failed to offer a pathway to legalization.
During this time, more than 800,000 people have benefited from DACA’s grant of protection from deportation and access to work permits and other documentation. Many are now U.S. Citizens for having taken advantage of advance parole, which is the ability to travel for humanitarian, employment legally, or education basis, and subsequently, marry a U.S. Citizen or lawful permanent resident.
In September 2017, Donald Trump attempted to end the program so that DACA holders’ protections would expire over time. After various legal challenges, this attempt was halted by the Supreme Court in June 2020 on technical grounds: the Trump Administration had not adequately justified its decision and had not followed the necessary regulatory procedures to end the program.
To make matters more complicated, in December 2020, a federal district court reopened DACA to new applicants, including youth who had reached the program’s minimum age of 15 since September 2017 and met DACA’s other requirements.
That opportunity was quickly shut down in July 2021 when U.S. District Judge Andrew Hanen in Texas ruled on a case brought by the State of Texas and eight other Republican-led states in May 2018 that challenged the merits of the legality of the program and alleged it exceeded the executive branch’s authority on immigration policymaking and further violated the Administrative Procedures Act because it had not met regulatory requirements.
The Biden administration has appealed Hanen’s ruling to the Fifth Circuit, which will hear arguments in the case early next month. Whichever way the court rules, its decision will likely be appealed to the Supreme Court.
Even as the legal challenges to DACA have been winding their way through the courts, the Biden administration has taken steps to strengthen its’ survival. In September 2021, the administration published a proposed regulation to re-establish the program with its original eligibility criteria. The proposed rule would require separate processes to apply for protection from deportation and work authorization through DACA. This move is likely intended to address a part of Hanen’s ruling finding that DACA’s grant of work authorization and advanced parole differentiates the program from other forms of prosecutorial discretion that more clearly lie within the executive branch’s authority and have a long history of use. The administration has not yet issued the final version of this new regulation. Whether the new rule will be enough to convince the Fifth Circuit or the Supreme Court that the program is legally sound remains to be seen.
Since September 2017, the DACA program has only briefly been open to new applicants. Thus, it is available only to those with DACA protections or who had it at some point in the past.
According to agency statistics, on March 31, U.S. Citizenship and Immigration Services (USCIS) had a backlog of more than 55,000 pending first-time DACA applications. Therefore, it is still essential to apply for no other reason than to register the need and the demand so that Congress acts.
However, even if the program were to be reopened to new applicants, its eligibility requirements mean that it is now open only to those who entered the United States 15 or more years ago. As a result, most unauthorized immigrants aging into adulthood no longer meet this basic threshold for DACA and thus are experiencing the same educational, employment, and social challenges that Dreamers faced before DACA’s creation. Nonetheless, suppose DACA were to be reopened. In that case, tens of thousands of individuals could likely qualify immediately or after enrolling in a qualifying education program or obtaining a high school equivalency.
The benefits have been proven on DACA’s tenth anniversary, and sympathy for Dreamers has continued, but Congress remains stagnant.
Congress has debated various versions of the DREAM Act since the first such bill was introduced in 2001. Despite bipartisan support for Dreamers among voters and members of Congress alike, the legislation has consistently fallen short of passing both chambers of Congress. In early 2018, following Trump’s effort to end DACA, lawmakers debated—though failed to pass several measures related to Dreamers. Over the past several years, the House has twice passed the Dream and Promise Act, which would grant a path to permanent residence to a sizable group of Dreamers and TPS holders; twice, the Senate did not consider the bill.
Litigation that has kept DACA alive has relieved Congress of the pressure of negotiating any compromises and tradeoffs necessary to enact legislation related to Dreamers. The fate of Dreamers may once again land in the hands of the Supreme Court, but ultimately only Congress can provide them with durable legal status.
If the Supreme Court declares the DACA program unlawful, Congress could face immense pressure to act. So, we must keep the pressure on and advocate for long-term permanent legalization.