DACA: Where Things Stand
The Trump administration added a major item to Congress’ to-do list with a September 5 announcement by Attorney General Jeff Sessions that the administration would phase out the Deferred Action for Childhood Arrivals (DACA) policy. The program, which was created by the Obama administration, has allowed an estimated 790,000 undocumented immigrants, known as “Dreamers,” to live, work and study in the United States. The administration said it does not intend to end the program until March 5, 2018, leaving Congress six months to find a way to provide permanent relief to DACA recipients. In the meantime, as laid out in Acting Secretary of Homeland Security Elaine Duke’s memorandum, current DACA recipients will be permitted to retain both the period of deferred action and their Employment Authorization Documents (EADs) until they expire (two years after their initial approval or renewal), unless terminated or revoked. October 5, was the last day that DACA recipients were eligible to apply for an extension of their legal status.
The administration’s decision was immediately challenged in federal court on September 6 by 15 states and the District of Columbia, New York v. Trump, alleging that the rescission violates the equal protection component of the due process clause of the Fifth Amendment to the Constitution because it was motivated by anti-Mexican animus. The suit also alleges that the administration violated the Administrative Procedure Act, which required the rescission to have been made through notice-and-comment rulemaking. Whether this litigation and similar suits, including one filed by the Regents of the University of California and others filed by the states of California, Maine, Maryland and Minnesota and the NAACP, succeed remains to be seen.
While there is strong support within Congress and pressure from business groups, higher education, and other stakeholders, to work toward a solution for Dreamers, there does not seem to be a consensus or agreement on the best framework to address the issue. Legislation that has been introduced to date varies with respect to the number of Dreamers that may be covered and faces criticisms from some Republicans who are calling for border security and interior enforcement, including mandatory E-Verify, to pass before Congress addresses the Dreamer issue. For an in-depth look at the current legislative proposals in Congress please see the Migration Policy Institute and the National Immigration Law Center reports comparing the proposals.
Making matters even more difficult was the release on October 8 of President Trump’s letter to House and Senate leaders that included reforms the president would like to see included as part of any legislation addressing the status of DACA recipients. The list includes calls for construction of the border wall; a merit-based points system for green cards; faster deportation of unaccompanied minors; a grant cutoff to sanctuary cities; and among other measures, restriction of permanent-residency sponsorship by U.S. citizens to spouses and minor children. Many of these provisions are untenable for some Republicans and most Democrats, which will make the process of finding a solution more difficult in the months to come.
Nevertheless, CUPA-HR will continue to work with our higher education association colleagues to support congressional action that will allow Dreamers to remain in the United States, work, attend U.S. colleges and serve in our military. We will continue to keep our membership apprised of any new developments and encourage members to visit the Protect Dreamers Higher Education Coalition web page, which contains materials related to DACA that campuses may find helpful in discussing this issue.