The Supreme Court of the United States (SCOTUS) headed into a new session last month. In June 2019, the Court agreed to hear consolidated oral arguments on three cases relating to DACA, Regents of the University of California v. Department of Homeland Security, Batalla Vidal v. Nielsen and NAACP v. Trump, set for November 12, 2019. In response, higher education organizations along with NASPA submitted an amicus brief to Chief Justices in support of the preservation of the Deferred Action for Childhood Arrivals program. NASPA has long supported DACA and, over the last few years, the Association has created and shared resources on the benefits of the program, both in uplifting our national economy, along with its indicators of creating success pathways for undocumented individuals in higher education. NASPA also acknowledges that DACA is not a panacea, or a cure-all, for education barriers confronted by undocumented immigrants. The outcome of this SCOTUS oral argument matters, and it also indicates that it may be time to employ multiple forms of advocacy to optimize support to undocumented members of the higher education community.
Learn. Review the Unknown Outcomes
The act of endorsing or pledging a commitment to the betterment of all students in higher education, along with the policies to support them, remains of utmost importance to the student affairs profession. When it comes to DACA, however, the advocacy angle to best support students may be difficult to assess due to ongoing ambiguity regarding the continuance of the program. While the outcome of the SCOTUS hearing remains unknown, and the act of prediction does not directly support fearful students, understanding the possible outcomes can inform “the why” behind the decision-making process. SCOTUS could make a definitive decision regarding:
the legality of DACA, and/or
whether or not the Trump administration should be given the lawful discretion to end the program.
SCOTUS could find DACA to be unlawful. Following the creation of DACA, in 2014 the Obama administration announced the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) that would have granted deferred action to undocumented individuals whose children are either citizens or lawful permanent residents. The Texas Court of Appeals blocked DAPA from implementation in 2015 given that “the interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s [Immigration and Nationality Act] intricate system of immigration classifications and employment eligibility (Texas v US, 184).” The Trump administration used similar reasoning in September 2017, finding the DACA executive action an overreach by the Obama administration. Counter to the ruling in 2015, DACA does not grant lawful presence and work authorization to “any illegal alien in the United States. The program has very limited eligibility requirements with no pathway of citizenship attached to it.
In the case of removal, immigration law relies on the discretion of the Department of Homeland Security (DHS). In 2015, the American Action Forum released a study finding that it would cost between $400-$600 billion to forcibly remove all undocumented individuals in the United States. In terms of cost alone, DHS must use discretion in choosing when to act in its enforcement, therefore, a system where certain individuals are granted deferred action, like that in the case of DACA might fall under this discretion, and works within the existing law.
SCOTUS may find the decision to end DACA at the discretion of the Trump administration. Lower courts have argued that it is within the purview of the court to find the initial decision to end DACA “arbitrary and capricious” under the Administrative Procedures Act (APA). This means that the courts believe the decision to end the program lacked sound reasoning, and it is in the right of the court to weigh on that reasoning. Following these court injunctions, the Trump administration has pointed out that its plan of slowly sunsetting the program would allow for a transition, and give time for Congress to implement a more permanent solution. Afterall the Obama administration announced in 2012 that the program was created as a “temporary stop-gap measure.” In reality, however, a current iteration of the Dream Act, which would preserve and expand DACA benefits has passed the House but remains stagnant in the Senate, and a current solution is not in immediate sight. Therefore DACA continues to provide temporary benefits for dreamers.
SCOTUS may find that the courts cannot review the decision to end DACA under the “arbitrary and capricious” standard, given the decision to end DACA is actually under the discretion of the agency the Trump administration to make. SCOTUS may find the case beyond the purview of the court entirely. This would seemingly go against the purpose of having a system of checks and balances in which each arm of the government is responsible for keeping the other accountable.
Engage. How Student Affairs Professionals Can Advocate for DACA Recipients
The currently estimated 660,000 DACA recipients have lived in ambiguity over the potential loss of recipient benefits for over two years. A recent survey conducted by the Center for American Progress (CAP), shows that 93 percent of DACA respondents reported concerns regarding the risks they or their families would encounter if returned to their countries of birth. In higher education, student affairs professionals are often the frontline staff to field these concerns.
For student affairs professionals looking to advocate for students, a great place to start is to stay abreast of the timelines at play—namely those of SCOTUS and Congress. SCOTUS always hears oral arguments from October to April and releases decisions in late June or early July. The consolidated DACA cases are set for a decision in June 2020. The 116th Congress will run through January 2021, and the next congressional election will coincide with that of the next presidential election on November 3, 2020, with 33 seats up for reelection in the Senate, and all 435 in the House.
DACA recipients may be currently weighing these timelines against the DACA renewal process. DACA is valid for two years following its approval date, and United States Customs and Immigration Services (USCIS) recommends filing for renewal 120-150 days before status expiration, though the National Immigration Law Center (NILC), points out that USCIS has consistently been approving applications submitted earlier than 150 days out. Data suggest that renewal rates for current recipients are in decline, and this may be associated with the cultures of fear that tend to arise amidst political ambiguity toward historically marginalized groups.
Student affairs professionals might be able to assist with providing students with a clear picture of the risks involved in applying earlier than the recommended 150-day timeline. Students may have to forego the $475 application fee should SCOTUS decide to end the program. USCIS may deprioritize early applications so that a case is not processed until after the renewal window closes. Early applicants could also lose overall time in the duration of their work authorization. There have been cases in which early renewal has resulted in the automatic activation of a new two-year work-permit before the old one has expired.
Both CAP and NILC note the high approval rate of USCIS for those that have been submitting applications and encourage the thousands of recipients currently up for status expiration every month to continue to apply. The encouragement is gilded with caution, however, given that June 2020 is only seven months away, and 310,200 recipients will soon have to weigh the benefits of the program against the costs, perceived and actual, of applying with an expiration past the date of an expected decision from SCOTUS.
At the policy level, the SCOTUS decision is left in the hands of SCOTUS, but student affairs professionals wishing to advocate on behalf of students can prioritize work around local, state, and federal legislation which can be leveraged to benefit undocumented students in higher education. Take some time to let your congressional delegation know how the students you engage are impacted, and in the meantime, stay as informed as you can and remember NASPA staff are here to help!