DACA Is Back. Now What?

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For undocumented immigrants who came to the U.S. as children, a new court decision has brought a long-awaited reprieve from deportation. But the path to permanent respite remains marred with political and legal obstacles. 

Last Friday, a federal court in New York ordered the Trump administration to reinstate the Deferred Action for Childhood Arrivals (DACA) program — an Obama-era initiative that has allowed around 646,000 immigrants to stay in the country and work legally as long as they meet certain eligibility conditions.

An estimated 685,000 additional people may be able to apply for DACA under the new ruling. Specifically, Judge Nicholas Garaufis directed the government to go back to the original 2012 version of the program, which means it will now open to new applicants for the first time since the Trump administration tried to end it in 2017. 

“I was very happy and excited because some of our plaintiffs are going to get a sense of relief,” said Carolina Fung Feng, a 31-year-old who obtained DACA in 2012 and is a plaintiff in the lawsuit. In the middle of a pandemic and the resulting economic devastation, both of which have inflicted particular hardship on undocumented immigrants, the decision “gives me room to breathe and relax for a little,” she said. 

An unending legal saga 

Friday’s ruling is the latest chapter in a years-long legal saga. It begins in 2017, when the Trump administration tried to rescind the program shortly after taking office. The move was immediately challenged. While the litigation made its way through the court system, previous recipients of DACA were allowed to renew their protections, but new applications were paused. 

In June, the U.S. Supreme Court found that the Trump administration had rolled back DACA in an “arbitrary and capricious” manner and in doing so, had violated procedural law. The court did not decide on the legality of the program itself and left the door open for a do-over. 

This ruling should have immediately opened DACA back up for all new applicants. But for weeks after, the Department of Homeland Security stalled, saying that it was reviewing the decision. 

July saw two notable developments. First, a federal judge in Maryland told the government to restore the program to its pre-2017 status and start processing new applications. Then, acting DHS head Chad Wolf issued a new memo in which he specifically forbade new applications while the agency conducted a “comprehensive review” of the program. The memo also required DACA recipients to renew their protections every year, instead of every two years, and placed restrictions on their ability to gain permission from the government to travel abroad. 

A month later, a group of young immigrants including DACA-eligible youth, first-time applicants and previous recipients sued. They were represented by lawyers at Make the Road New York, the National Immigration Law Center and the Jerome N. Frank Legal Services Organization at Yale Law School. That class action lawsuit, Batalla Vidal v. Wolf, is the one the New York federal court decided on Friday. 

Sure enough, U.S. Citizenship and Immigration Services, the agency that adjudicates applications for immigration benefits, updated its website late Monday with a notice confirming that it will be accepting new DACA applications in compliance with court orders. A DHS spokesperson told the New York Times the agency will appeal the ruling.  

However, it may well be that the Trump administration still gets the last word on DACA, thanks to another lawsuit pending in the U.S. District Court for the Southern District of Texas. This one was brought by a handful of Republican-led states and targets the legality of the program and not just circumstances around its implementation. It is being decided by Judge Andrew Hanen, whom immigration advocacy group America’s Voice once called the “Joe Arpaio of the federal judiciary,” likening him to a notoriously anti-immigrant former sheriff of Maricopa County, Arizona. 

Looking ahead 

The twists and turns of the legal battle surrounding DACA have only further highlighted that the program was always meant to be a temporary fix. 

“DACA has been hanging on a string for years now,” Pierce said, while young undocumented people continue to weather various degrees of uncertainty. 

A real, lasting solution to the predicament of this class of immigrants is legislative — on this, there is bipartisan agreement. One would assume that such legislation protecting them is low-hanging fruit, politically speaking. After all, this category of immigrants is immensely popular among lawmakers on both sides of the aisle and enjoys widespread support among voters. But it’s not: In fact, Congress hasn’t been able to pass any immigration-related legislation in the past two decades, under Republican or Democratic leadership. 

President-elect Joe Biden has promised to send a comprehensive immigration reform bill to Congress within his first 100 days in office that would include a pathway to citizenship for so-called Dreamers who came to the U.S. as children. But actually getting it passed, even if January’s runoff elections for the two Senate seats somehow go in his favor, will likely remain a Sisyphean task.

DACA recipients and activists say they are prepared for any eventuality — including that the courts and Congress may yet again let them down. 

“We’re resilient and we’ll continue to fight for the justice that we deserve,” Fung Feng said. 

— With assistance by Marie Patino

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