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DACA, Dreamers,

DACA in doubt after court ruling: 3 questions answered

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Author: Kevin Johnson, University of California, Davis

Editor’s note: A federal court in Texas delivered a blow to an Obama-era federal program shielding hundreds of thousands of undocumented immigrants who came to the United States as children from being deported.

U.S. District Judge Andrew Hanen ruled on July 16, 2021, in Texas v. United States that Deferred Action for Childhood Arrivals, or DACA, was unlawful. Hanen put a hold on new applications. The decision caught many people off guard because, in 2020, the U.S. Supreme Court had rejected then-President Donald Trump’s effort to dismantle DACA, leaving the policy mostly intact.

The federal government under President Joe Biden has been accepting new applications for DACA protections. That must now stop, Hanen ruled.

We asked legal scholar Kevin Johnson, who specializes in immigration law, to explain what impact Hanen’s ruling will have on DACA – and what comes next.

DACA, Dreamers,

Molly Adams from USA, CC BY 2.0, via Wikimedia Commons

1. If the Supreme Court already ruled DACA could continue, how can it be unlawful?

In Department of Homeland Security v. Regents of University of California, the Supreme Court did not decide whether DACA, established by President Barack Obama in 2012, was lawful. It held only that in its efforts to end DACA, the Trump administration had not followed the proper procedures required by the federal Administrative Procedure Act to terminate the policy.

In a 5-4 decision written by Chief Justice John Roberts, the court ruled that President Trump’s attempt to end DACA was “arbitrary and capricious” because it had failed to adequately account for, among other things, the severe disruption of the lives of DACA recipients who had relied on the program in making life decisions.

By so doing, Trump had violated the Administrative Procedure Act, and, thus, his administration’s attempt to invalidate DACA was unlawful. As a result, the immigrants already protected by DACA would maintain their legal status, and the ruling seemed to require the administration to allow new DACA applications.

But the Trump administration refused to allow new applications to the program.

In Texas v. United States, Judge Hanen reviewed a different decision by a different president – the Biden administration’s decision to resume accepting new DACA applications. But his ruling relied on the Supreme Court’s analysis of President Trump’s attempted termination of DACA.

Hanen found that the Biden administration had not reopened applications following appropriate procedures under the Administrative Procedure Act, which requires allowing public notice and comment on the policy. As such, he ruled, the Biden administration could not accept new DACA applications.

2. What does the Texas court’s decision mean for current DACA recipients?

Judge Hanen’s ruling only bars the approval of new DACA applications. It does not eliminate DACA relief for the approximately 690,000 people already enrolled in the program.

Current DACA recipients may still apply for renewals every two years. The Biden administration is likely to grant those renewals absent a change in the applicant’s circumstances, such as a serious criminal conviction.

Put simply, for the time being, current DACA recipients are protected from deportation, but the Biden administration can no longer offer that same protection to other undocumented immigrants brought to the U.S. as children – even if technically it seems they could apply for DACA.

3. What’s next in the DACA debate?

President Biden has said his administration will appeal Judge Hanen’s ruling, and the Supreme Court ultimately could take the case. If the ruling were reversed by a higher court, the Biden administration would be permitted to approve new DACA applications.

The courts aren’t the only place where DACA’s legal problems could be addressed. Biden, immigrant rights advocates and congressional Democrats, including Sen. Dick Durbin, are now calling for lawmakers to pass legislation permanently protecting DACA recipients.

The American Dream and Promise Act of 2019 – introduced to Congress during President Trump’s campaign to end DACA – would provide a pathway to citizenship for current DACA recipients. That immigration reform would give them lasting legal status, rather than the temporary – and revocable – relief from deportation offered by DACA.

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Kevin Johnson, Dean and Professor of Public Interest Law and Chicana/o Studies, University of California, Davis

President Biden to propose immigration reform bill that will legalize 11 million

During his first days in office, President Joe Biden’s first agenda is to address the long-elusive goal of immigration reform with a groundbreaking legislative package and immigration bill that will grant a quicker pathway to citizenship for an estimated 11 million immigrants who are in the country without legal status.

immigration reform

Photo by Metin Ozer on Unsplash

Biden’s immigration reform bill: “Restoring humanity to our immigration system”

On Saturday, Biden’s incoming chief of staff, Ron Klain, sent a memo to the administration’s senior staff that said the new president’s agenda includes “the immigration bill he will send to Congress on his first day in office,” which Klain asserted would “restore humanity to our immigration system.”

Biden’s proposal lays out what would be the most sweeping and comprehensive immigration reform package since President Reagan’s Immigration Reform and Control Act of 1986, which granted legal status to 3 million people who were in the country without documentation.

In an interview with Univision,  VP Kamala Harris gave a preview of the bill’s provisions. The new immigration bill will provide shorter pathways to citizenship for hundreds of thousands of people, including automatic green cards for immigrants with temporary protected status (TPS) and Deferred Action for Childhood Arrivals (DACA) status. Wait times for U.S. citizenship would also decrease from 13 to eight years under this bill, and there would be an increase in the number of immigration judges to relieve backlog in cases.

This bill differs from many previous immigration bills passed under both Democratic and Republican administrations. The key difference being that the proposed legislation “would not contain any provisions directly linking an expansion of immigration with stepped-up enforcement and security measures,” said Marielena Hincapié, executive director of the National Immigration Law Center, who has been consulted on the proposal by Biden staffers.

“This notion concerning immigration enforcement and giving Republicans everything they kept asking for … was flawed from the beginning,” she said.

Hincapié added Biden’s team would be able to bypass legislation to quickly make a number of administrative changes.

She expects him to announce several executive actions that would expand DACA, overturn Trump’s 2017 travel ban targeting Muslim-majority countries and rescind Trump’s public charge rule, which allowed authorities to deny green cards to immigrants who use food stamps or other public benefits.

Setting a new tone: “It’s not going to be about walls.”

Under Biden’s immigration bill, immigrants would become eligible for legal permanent residence after five years and for U.S. citizenship after an additional three years — a faster path to citizenship than in previous immigration bills.

“I think this bill is going to lay an important marker in our country’s history,” said Lorella Praeli, an immigrant and longtime activist who has been talking with Biden’s staff, noting that the measure “will not seek to trade immigration relief for enforcement, and that’s huge.”

Praeli, president of Community Change Action, a progressive group based in Washington that advocates for immigrants, described the bill as “an important opening act.”

“If there is a silver lining to the Trump era, it’s that it should now be clear to everyone that our system needs a massive overhaul and we can no longer lead with detention and deportation,” she said.

You might be interested: “Kids in Cages” Warehouse detention center shuts down for renovations

On the topic of undocumented essential workers, Rep. Joaquin Castro (D-Texas) said “It’s time for essential workers to no longer be treated as disposable, but to be celebrated and welcomed as American citizens. If your labor feeds, builds and cares for our nation, you have earned the right to stay here with full legal protection, free from fear of deportation.”

Additionally, Leon Rodriguez, who was director of U.S. Citizenship and Immigration Services from 2014 to 2017, said that, “the public attitude toward immigration enforcement is at a different place in 2021 than it was at any point prior to the Trump administration. I think there just has been a lot of things about how immigration enforcement was executed under the Trump administration that didn’t sit right with a lot of Americans.”

However, he believes Biden’s overall approach will set an entirely different tone in the conversation of immigration reform in America. He sees a more hopeful, positive era ahead.

“It’s not going to be about walls and keeping people in Mexico,” he said.

While the ambitious bill is a great first step for the new administration, the bill will likely face months of political pushback on Capitol Hill by conservative voters, even with Democrats holding the White House and slender majorities in both chambers of Congress.

Still, if the broader bill were to die or take too long to pass, there are alternate venues Democratic leadership can take to legalize a substantial group of people — specifically the estimated 5 million essential workers now in the country without legal status.

One possible alternative would be to take advantage of COVID relief measures. Democratic leadership could decide to include measures offering legal status to essential workers via a process known as budget reconciliation. This process would only need 51 votes to pass the Senate.

“We are talking about potentially 5 million workers who have put their own lives on the line as essential workers,” Praeli said. “You cannot be essential and deportable.”