Trump Administration Rescinds DACA, Fueling Renewed Push in Congress and the Courts to Protect DREAMers

In a much-anticipated announcement, on September 5, U.S. Attorney General Jeff Sessions rescinded the Deferred Action for Childhood Arrivals (DACA) program, fulfilling one of President Donald Trump’s key campaign promises. The program, a landmark legacy of the Obama administration, granted work authorization and relief from deportation to roughly 790,000 young unauthorized immigrants—often referred to as DREAMers—who were brought to the United States as children. With six months on the clock until DACA recipients begin to lose protection, the movement to shield the DREAMers has taken on a greater sense of urgency and set in motion renewed efforts to find a longer-term fix.

Though the administration is not immediately terminating the program, it has provided the formal details of its “unwinding” in a memorandum issued by Acting Homeland Security Secretary Elaine Duke. All current DACA recipients will retain their work authorization and protection from deportation until their expiration dates, and those whose permits expire before March 5, 2018 can submit a renewal application by October 5. Those whose permits expire March 6 will lose protection that day, and those who may have been eligible but have not yet applied will no longer be able to do so.

The announcement to rescind DACA was met with a firestorm of protests from a broad cross-section of society: members of Congress from both parties, prominent corporate leaders, university presidents, and religious and civil-society leaders. Quick promises of congressional action and swift legal challenges suddenly shifted the focus from the administration to the two other branches of government—Congress and the courts.

The stated intent of Trump’s decision to end DACA gradually was to give Congress a six-month window to enact legislation to protect DREAMers. Many have speculated that the six-month deadline in the administration’s announcement imposes the kind of pressure that Congress needs to come up with a legislative fix, something that has eluded it for more than 16 years. The president, it seems, is now actively negotiating with lawmakers to try to pass such protections. Even before the September 5 announcement, several bills had been introduced to accomplish just that. While attempts to include such provisions in the recent debt ceiling negotiations failed, lawmakers are engaged in high-intensity maneuvering to include them in other must-pass spending, appropriations, and debt bills before the end of the year.

Meanwhile, the announcement has also been challenged in four lawsuits in two different U.S. district courts, filed by an individual DACA recipient, 20 Democratic attorneys general, and the University of California.

The DREAM Act: A Brief History

Providing legal status for DREAMers has long attracted strong sympathy from the public and consistent bipartisan support, rooted in the legal and moral principle that children should not be held accountable for the actions of their parents, that the United States is the only country they have ever known, and that they make important contributions to the economy. This, combined with the DREAMers’ effective political organizing skills, has turned their cause into a movement, centered around passing the DREAM Act.

The Development, Relief, and Education for Alien Minors (DREAM) Act was first introduced in 2001, by Sens. Dick Durbin (D-IL) and Orrin Hatch (R-UT). The bill would have provided a pathway to lawful permanent residence (LPR status, also known as a green card) for certain young unauthorized immigrants brought to the United States as children, on the condition that they pursue higher education. However, the bill was never brought up for a vote.

Since then, members of Congress, with limited success, have introduced iterations of the DREAM Act on several occasions, adding a pathway to earn a green card through military service. It resurfaced in 2006 and 2007, again with bipartisan backing, as part of the comprehensive immigration reform bills, but those bills also failed. Following the 2010 midterm elections, the House passed a stand-alone version of the DREAM Act, but it failed to reach a filibuster-proof 60 votes even in a Democratic-controlled Senate. In 2013, provisions of the DREAM Act were included in a major bipartisan comprehensive immigration reform bill, which overwhelmingly passed in the Senate, but died in the House.

Lack of Congressional Action Leads to Creation of DACA

In June 2012, President Obama, frustrated with the inability of Congress to pass an immigration bill and under strong pressure from activists in the lead-up to the presidential election, announced the DACA program. It was billed as an exercise in prosecutorial discretion and did not grant or provide a pathway to legal status, as only a congressional action such as the DREAM Act could do.

Almost all Republicans, including those who historically supported immigration reform and the DREAM Act, such as Sen. Lindsey Graham (R-SC), denounced DACA as an unconstitutional executive overreach. To many, the creation of the program further removed the pressure on Congress to pass the DREAM Act.

In November 2014, Obama announced an executive action expanding DACA and creating a new program, Deferred Action for Parents of Americans (DAPA), that would protect a broader group of unauthorized immigrants from deportation—namely, parents of U.S. citizens or lawful permanent residents. Almost immediately, Republican attorneys general of 26 states challenged the legality of the program in a U.S. district court in Texas, which halted implementation of DAPA and the DACA expansion in Texas v. United States in February 2015. An evenly divided Supreme Court affirmed the district court’s decision in June 2016, and the Department of Homeland Security (DHS) officially rescinded DAPA and the DACA expansion in June 2017.

During his campaign, Trump vowed to pull the plug on DACA and DAPA, calling the actions “illegal executive amnesties.” However, after the election he changed his tune, saying DREAMERers could “rest easy” and promising to act on DACA with “heart.” Although a draft executive order that would have ended DACA leaked to the press during the first week of his presidency, Trump did not issue that order with others signed that week, leading to speculation that he might allow the program to continue.

A Path Forward in Congress?

With the announcement to rescind DACA, the pressure to protect DREAMers has moved squarely to Congress. Early signs are mixed regarding the prospects for legislative success. Republican leaders, including House Speaker Paul Ryan (R-WI) and Sen. Graham, have suggested that legislation protecting the DREAMers must be paired with border security measures to increase the chances of picking up Republican votes, though they have not indicated they will move with any urgency. Democratic leaders have largely indicated an openness to this compromise—as long as border security measures do not include a wall along the U.S.-Mexico border, a key Trump campaign promise.

Following a September 13 dinner meeting at the White House with Senate Minority Leader Charles Schumer (D-NY) and House Minority Leader Nancy Pelosi (D-CA), President Trump revealed he was working with Democrats on a deal to protect DREAMers. He said he wanted to find a way to keep DREAMers in the country while also adding “massive border security,” but conceded that a border wall would “come later.” Although the actual terms negotiated and decisions made in the meeting have caused some confusion, Trump agreed in principle to work to pass some form of the DREAM Act along with border security measures.

Despite the promise of these negotiations, many are skeptical that a bill protecting DREAMers could survive the committee process and make it to the floor for a vote, particularly given the likely blowback from many Republican quarters. Fearful of an angry base and the prospect of facing far-right primary opponents in 2018, rank-and-file Republicans may shy away from supporting DREAM Act-type bills. Former White House Chief Strategist Steve Bannon, aligned with the far-right wing of the Republican Party, said he foresaw a “civil war” within the GOP if Trump and congressional Republicans supported protections for DREAMers.

Given the political realities in the House in the near term, the most likely possibility for legislative success is adding DREAMer protections to must-pass legislation guaranteed to get a vote, or using a discharge petition in the House—requiring 218 signatures—to force a floor vote.

Three stand-alone bills have been introduced in Congress, and additional legislation may be introduced in the coming weeks.

DREAM Act

A version of the DREAM Act has been introduced in both chambers of Congress this session. The bill would grant conditional legal status for eight years to all current DACA recipients, as well as individuals who

• have been in the United States for four years at the time the law is passed;
• were 17 years old or younger when they entered the country;
• have not been convicted of certain crimes; and
• are in high school, have earned a high school diploma or General Education Diploma (GED), or have been admitted to an institution of higher education.

The Migration Policy Institute (MPI) estimates that 1.8 million people would be immediately eligible for conditional legal status under the bill. After meeting certain requirements, those with conditional status would then be eligible to get a green card.

Although the bill has gained some Republican support, its cosponsors are overwhelmingly Democratic. Rep. Pelosi has indicated that House Democrats are prioritizing the provisions of this bill to be included in any final deal. In early September, the Congressional Hispanic Caucus announced it would file a discharge petition—a process that bypasses committee action—and try to force a vote on the DREAM Act on the House floor.

Recognizing America’s Children (RAC) Act

Rep. Carlos Curbelo (R-FL) introduced the RAC Act in the House in March 2017, and Sen. Thom Tillis (R-NC) said he plans to introduce a similar bill in the Senate. This bill would grant conditional legal status for five years to individuals who

• have been in the United States since 2012;
• are at least 18 years old;
• were 15 years old or younger when they entered the country;
• have not been convicted of certain crimes and are not likely to depend on government assistance; and
• have earned a high school diploma or GED, have been admitted to an institution of higher education, or are authorized to work.

Slightly more than 1 million people would be immediately eligible for conditional legal status under this bill, according to MPI estimates. After five years, those with conditional status would become eligible for green cards. This bill has almost 30 cosponsors, all Republicans, one-third of whom signed on following Trump’s DACA announcement.

Bar Removal of Individuals Who Dream and Grow our Economy (BRIDGE) Act

The BRIDGE Act, which has been introduced in both chambers of Congress, would essentially enact DACA through legislation for a period of three years. Under this bill, those who would be eligible for DACA but are not already beneficiaries could apply for DACA benefits. Though it is the only bill that currently has significant bipartisan support, it is also the only bill that does not provide LPR status or a pathway to it for the DREAMers.

Going forward, it seems that any likely legislation would pair protections for DREAMers with some measures related to border security. Both Democrats and Republicans would potentially support this deal, and Trump would likely sign it, as he has expressed a strong desire to enact legislation dealing with both issues.

Seeking Protection in the Courts

The courts have also played a significant role in the drama surrounding DACA. Indeed, in his announcement rescinding DACA, Attorney General Sessions cited the threat of imminent litigation as one reason behind the decision. He was referring to the ten Republican attorneys general who sent a letter to Sessions in June 2017, declaring that they would add a legal challenge to DACA to the pending Texas v. United States lawsuit if the administration did not take steps to terminate DACA by September 5.

Following the Trump administration’s announcement to rescind, however, lawyers on the other side of the issue quickly jumped into action. Their legal challenges have echoed other recent immigration litigation, including Texas v. United States and the lawsuits against Trump’s travel ban executive order.

Batalla Vidal v. Baran

The first case, Batalla Vidal v. Baran, was originally filed in a U.S. court in the Eastern District of New York in August 2016 after the Supreme Court’s split decision in United States v. Texas. The case remained open on September 5, when the plaintiffs used it as a vehicle to ask to amend their original complaint and challenge the administration’s rescission of DACA, which the district judge allowed at a conference. Notably, the judge said he viewed the October 5 deadline for DACA renewals as arbitrary and capricious. He suggested that DHS extend the deadline, and indicated that if the agency did not do so, he may order it.

Lawyers for the plaintiff, a Mexican DACA recipient, argue that the termination of DACA was motivated by Trump’s anti-Mexican and anti-Latino animus, thereby violating the equal protection component of the Fifth Amendment. Borrowing a theme from the travel ban cases, and invoking Trump’s campaign statements (e.g., references to Mexican immigrants as “rapists” who are “bringing drugs”), the lawyers in the case allege that the president’s actions had discriminatory intent—particularly given 93 percent of DACA recipients are from Latin America. They also claim that the administration violated the provision of the Administrative Procedure Act (APA), which protects against “arbitrary and capricious” agency action, by not providing a reasoned explanation for the termination of DACA.

State Attorneys General and a University File Suit

The day after the announcement, Democratic attorneys general of 15 states and the District of Columbia, led by New York, sued the federal government in the same court as Batalla Vidal. Ironically, both their strategy (banding together with ideologically aligned attorneys general) and their argument as to why they have standing to bring the lawsuit (the states will be harmed due to the costs they and their residents will incur) echo Texas v. United States. In the earlier lawsuit, the Republican attorneys general claimed their states would incur costs because DAPA would cause unauthorized immigrants to come out of the shadows and demand the benefits of membership in society and the economy. Using parallel reasoning, the Democratic attorneys general allege that their states will face costs because, once DACA ends, unauthorized immigrants will return to the shadows and stop contributing to society and the economy.

As in Batalla Vidal, the attorneys general in New York et al. v. Trump argue that the rescission was motivated by racial animus; that it was instituted arbitrarily and capriciously; and that it violates the APA because it embodies a “substantive” new rule and therefore should have followed notice-and-comment procedures. Further, plaintiffs allege the government violated the Regulatory Flexibility Act by failing to issue analyses of how the policy change would affect small businesses. Finally, the attorneys general argue that the rescission violated due process: The administration’s refusal to prohibit DHS from using the personal information submitted by DACA applicants to conduct immigration enforcement, they say, is not “fundamentally fair.”

Separately, the University of California filed a suit on September 8 in the U.S. District Court in the Northern District of California, using many of the same arguments as the plaintiffs in New York. The attorney general of California sued several days later, joined by three other state attorneys general, in the same U.S. district court in California. While these attorneys general largely use similar arguments as in the New York actions, they base their Fifth Amendment equal protection claim not on anti-Latino bias but on the basis that the administration’s action discriminates against a distinct class of people—DACA recipients—by depriving them of their livelihoods and education.

A Consensus in the Works?

Even if this litigation is successful and the DACA program remains in effect, the fragility of the program has been laid bare by recent developments. Clearly, the only long-term solution for the plight of the DREAMers lies in congressional action. In the aftermath of the administration’s announcement, pressure on Congress to pass some version of the DREAM Act has risen to a level of urgency and broad support unseen in years past. Further, evolving bipartisan support suggests a possible consensus.

What will constitute that ultimate consensus is yet unknown, but with the clock ticking, is perhaps best captured in a statement by Sen. Marco Rubio: “We have no time to waste on ideas that do not have the votes to pass or that the president won’t sign.”

• DHS memorandum establishing DACA
• DHS memorandum rescinding DACA
• U.S. district court opinion in Texas v. United States
• DREAM Act (2017)
• RAC Act
• BRIDGE Act
• Complaint filed in New York et al. v. Trump
• MPI fact sheet looking at the potential impacts of the DREAM and RAC Acts
• MPI data tool on DACA-eligible populations

National Policy Beat in Brief

Supreme Court Reverses Ninth Circuit Decision on Refugee Ban, while Extended Family Members Allowed to Travel. After a three-judge panel of the Ninth Circuit Court of Appeals affirmed a lower court’s ruling that refugees already assigned to resettlement agencies were exempt from President Donald Trump’s travel ban, the Justice Department asked the Supreme Court to stay this mandate. Justice Anthony Kennedy, who has jurisdiction over the Ninth Circuit, agreed, staying the mandate a day before it would have gone into effect. The next day, the full court, upon referral from Kennedy, also granted the Justice Department’s stay. This effectively eliminates the possibility that 24,000 refugees who already have ties to resettlement agencies might be able to enter the country before the end of the fiscal year on September 30.

In the same Ninth Circuit ruling, the panel also affirmed a district court’s ruling that extended family members (i.e., grandparents, grandchildren, brothers- and sisters-in-law, aunts, uncles, nieces, nephews, and cousins) were exempt from the travel ban. A U.S. district judge in Hawaii had previously ruled that these extended family relationships constituted bona fide relationships with U.S. individuals, and that agencies’ agreements with refugees to resettle them in the United States constituted bona fide relationships with U.S. entities. These bona fide relationships would allow them, based on the Supreme Court’s June ruling, to bypass the entry and refugee bans set into motion in June and, for refugees, to be admitted even though the 50,000 cap on admissions was already reached.

The Ninth Circuit panel found that the exemption should be extended to additional family members because there was no reason why a mother-in-law counts as a bona fide relationship—as the Supreme Court explicitly stated—but a grandparent or cousin, for example, does not. The three judges also found that the relationship between refugees and resettlement agencies is bona fide; while the government had argued that the relationship was, in reality, between the U.S. government and the resettlement agency, the judges ruled that “the Government’s intermediary function does not diminish the bona fide relationship between the resettlement agency and the specific refugee.” Although the Justice Department appealed the Ninth Circuit’s decision on refugees, it notably did not appeal the decision exempting broader categories of family members from the ban.

• Ninth Circuit decision exempting extended family and refugees
• Politico article on the Ninth Circuit’s decision
• Politico article on the Justice Department’s appeal to the Supreme Court

Noncriminal ICE Arrests Continue to Increase. In the first six months of 2017, U.S. Immigration and Customs Enforcement (ICE) made 75,000 arrests, out of which 19,800 (26 percent) were of immigrants with no criminal records, according to newly released ICE data provided to media outlets. In comparison, over the same period in 2016, 8,000 (15 percent) of approximately 55,000 arrests were of immigrants with no criminal records. The share of noncriminal arrests so far in 2017 is comparable to the share over the same period in 2014, when 27 percent of immigrants arrested by ICE had no criminal records. Over the first half of 2017, the share of noncriminal arrests increased substantially, from 18 percent in January to 30 percent in June, and ICE Acting Director Thomas Homan has promised that the trend will continue. 

• CNN article on new arrest data
• USA Today article with data on monthly shares of arrests
• Migration Information Source Policy Beat article covering immigration enforcement in the first six months of the Trump administration

DHS Ends Parole Program for Central American Minors. On August 16, the Department of Homeland Security (DHS) terminated the Central American Minors (CAM) Parole program, while leaving in place the CAM Refugee program. Applicants who were denied refugee status under the CAM Refugee program were considered for parole, which allowed them to legally enter the United States, but without many of the benefits of refugee status. Those already in the country will maintain their parole status until it expires, but will not be able to reapply through the CAM program. Those who had been approved but had not yet traveled to the United States lost their grant of parole.

The administration likely took this action to follow through with President Trump’s Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” and the accompanying implementation memo, which directed DHS to exercise parole only on a case-by-case basis, rather than granting it to “predesignated categories” of noncitizens. As of December 2016, U.S. Citizenship and Immigration Services (USCIS) had received 9,900 applications for refugee status through the CAM program, at least 2,000 of which were recommended for parole.

• Executive Order 13767, Border Security and Immigration Enforcement Improvements
• New York Times article on the termination of the parole program
• USCIS Ombudsman’s report on the CAM Parole and Refugee programs
• Federal Register notice announcing the termination of the parole program

Cities, California Sue over New “Anti-Sanctuary” Conditions on Federal Grants. Several cities—Chicago, San Francisco, Los Angeles, and Philadelphia—and the state of California have sued the federal government for imposing new conditions on a Justice Department grant program. The Byrne Justice Assistance Grants (JAG) program provides states and localities with funding for designated local law enforcement programs. At the end of July, the Justice Department announced that, as part of the government’s crackdown on so-called sanctuary cities, Byrne JAG grant recipients would now have to certify that they allow immigration status information sharing between local law enforcement and ICE, permit ICE agents access to their jails, and comply with ICE requests for 48-hour advance notification about the release of certain inmates.

While none of the plaintiffs (except Chicago) challenge the information sharing requirement, they all argue that the latter two requirements—access to jails and cooperation with ICE requests for notifications—should be enjoined. Among other things, they argue that Attorney General Jeff Sessions acted beyond his statutory authority in imposing these conditions, thereby violating the separation of powers. Even if Sessions did have statutory authority, they argue, imposing these conditions violates the Spending Clause of the Constitution, which has been interpreted in case law to require that conditions imposed on federal funds be related to the funds’ purpose. Finally, some argue that the notification requirement would result in Fourth Amendment violations if law enforcement agencies are forced to hold inmates past their release time (e.g., if an inmate is ordered released on bond the same day, a jail would still need to hold him for up to 48 hours to comply with the ICE requirement). Chicago argued its case in U.S. district court on September 11; no decision has been issued yet.

• Justice Department backgrounder on Byrne JAG requirements
• City of Chicago’s lawsuit
• New York Times article examining several of the lawsuits

Haitians Flee to Canada, Fearing the End of TPS. Canadian national police officers arrested about 3,000 people illegally crossing its southern border from the United States in July, and about 4,500 people in the first three weeks of August. Officials say those apprehended are mostly Haitian nationals. This sharp increase comes after DHS announced at the end of May that Temporary Protected Status (TPS) for Haitians, which was set to expire in July, would be extended to January, but simultaneously warned that Haitians with TPS should use the extension to make plans to depart the United States. As misinformation has circulated online about how easy it is to obtain refugee status in Canada, a growing number of Haitians in the United States have made the journey north. However, deportations of Haitians from Canada have also been rising: In the first eight months of 2017, 474 were deported, compared to 100 in all of 2016. Under the Safe Third Country Agreement between the United States and Canada, Haitians who travel to Canada from the United States and present themselves at ports of entry to seek asylum will not be processed, and will be sent back to the United States. However, those who enter Canada between ports of entry and are later apprehended can apply for asylum.

• Toronto Star article on the increase in Haitian migrants
• Reuters article on the increase in deportations from Canada
• Government of Canada asylum claims data
• Migration Information Source feature article on northern border crossings and the Safe Third Country Agreement

Border Patrol Alters Training. The U.S. Border Patrol is implementing a new training curriculum as it prepares to hire thousands of new agents, directed by President Trump’s executive order on border security. The new training, conducted entirely in Spanish, focuses on the importance of Spanish language skills, how to work safely near border fencing, and how to de-escalate situations to avoid the use of force when possible. It is currently in a pilot phase and is expected to be rolled out for all incoming trainees at the beginning of October. DHS is requesting funds to hire 500 new agents in FY 2017, which the House Appropriations Committee provided in its bill.

• New York Times article on new curriculum

State and Local Policy Beat in Brief

Illinois Governor Limits Local Law Enforcement Cooperation with ICE. Illinois Gov. Bruce Rauner signed the Trust Act on August 28, making Illinois the third state—following California and Connecticut—to implement a statewide law limiting local cooperation with ICE. The law prohibits state and local law enforcement agencies from complying with ICE detainers absent a judicial warrant, and from stopping, arresting, searching, or detaining individuals based on their immigration status. The Illinois law is broader than that of either California or Connecticut, which both allow law enforcement officers to comply with ICE detainers without a court warrant in certain circumstances. The text of the Illinois law emphasizes that it does not prohibit communication between federal agencies and local law enforcement—if it did, it would violate a federal statute.

The new law is already facing its first test in McHenry County, where local authorities reportedly transferred an unauthorized immigrant to ICE custody based on a detainer accompanied only by an administrative warrant. The man’s lawyers sued the county, arguing that the transfer violated the Trust Act. County prosecutors argued that the Trust Act is unconstitutional and pre-empted by federal law. On September 13, the Illinois attorney general released guidance for state and local law enforcement agencies on Trust Act compliance. The guidance clarified that officers would be in violation of “state law and constitutional protections” if they detained someone past their release date on the basis of an ICE detainer.

• Illinois Trust Act
• Associated Press article on Gov. Rauner signing the bill into law
• Northwest Herald article on the lawsuit against McHenry County
• Attorney General’s guidance

Federal Judge Enjoins Parts of Texas Law SB 4. A federal judge in Texas enjoined several provisions of a hardline Texas law, known as Senate Bill (SB) 4, which aimed to crack down on so-called sanctuary policies in some jurisdictions and force local law enforcement agencies to assist ICE in immigration enforcement. Judge Orlando Garcia halted parts of the law that would have required local agencies to honor ICE detainers, prohibited any local official from adopting or endorsing a policy limiting enforcement of immigration laws, and required local authorities to allow their officers to cooperate with ICE, including by providing “enforcement assistance.” Judge Garcia did not, however, enjoin the provision allowing law enforcement officers to inquire about the immigration status of anyone they lawfully detain, including at traffic stops, noting that a similar provision in Arizona’s SB 1070, which mandated that officers ask about immigration status, was not enjoined by the Supreme Court. He noted that “the only permitted … action under SB 4 following an immigration inquiry is sharing, and maintaining information,” and that officers may not arrest someone or prolong detention solely due to their immigration status. Texas has appealed the decision to the Fifth Circuit Court of Appeals, which agreed to hear oral arguments in the case on September 22.

• Judge Orlando Garcia’s ruling
• Vox article breaking down the ruling

Denver Limits Cooperation with ICE. The Denver City Council, with the support of the mayor, passed an ordinance at the end of August limiting the city’s cooperation with ICE. The ordinance prohibits city employees from collecting information on the immigration status of individuals, and bans city law enforcement officials from honoring ICE detainers absent a judicial warrant. It allows law enforcement officials, however, to notify ICE about the upcoming release date of noncitizens about whom they have requested information. The ICE field office issued a statement condemning the ordinance as “irresponsible” and “dangerous.”

• Denver Post article on the ordinance

Houston Faces Challenges Rebuilding after Harvey. Houston is likely to face challenges rebuilding after Hurricane Harvey damaged or destroyed more than 200,000 homes. Unauthorized immigrants make up at least one-quarter of all construction workers in Houston, where the industry has faced severe labor shortages. However, these workers will not be able to participate in the federal government’s recovery effort if they cannot pass the E-Verify check required of federal contractors. An underground economy is already starting to pop up, with residents desperate to clean up their homes hiring day laborers for $20 per hour or higher rates.

• Washington Post article on Houston’s construction needs
• Washington Post article on the day laborer economy in Houston