This afternoon, RPI Policy Analyst Diana Ali will present a free, live Public Policy Briefing providing an update on Deferred Action for Childhood Arrivals (DACA), a program implemented during the Obama administration whose future is uncertain now that President Trump has taken office. Diana will provide an update on the current status of DACA along with policy alternatives to continue the protections offered by the program. This post will serve as a companion to the information presented there, offering a brief overview of the history of DACA as well as possible outcomes for the program following the tightening of immigration enforcement announced earlier this week by the Department of Homeland Security.
What DACA is and isn’t
DACA was created through an exercise of executive action, specifically created when then-Secretary of Homeland Security Janet Napolitano issued a memorandum to US Customs and Border Protection (CBP), US Citizenship and Immigration Services (USCIS), and US Immigration and Customs Enforcement (ICE) instructing them to utilize prosecutorial discretion for “certain young people who were brought to this country as children and know only this country as home.” Prosecutorial discretion is the power a government attorney has to decide whether or not to bring criminal charges in a given case. In DACA, Secretary Napolitano was instructing government agencies and officers who oversee immigration proceedings to defer action against persons who illegally entered the US through the actions and choices of their parents or other adults.
Undocumented immigrants who arrived in the United States as minors and have lived here since at least 2007, and who meet a handful of additional criteria, including not having been “convicted of a felony, significant misdemeanor, or three or more other misdemeanors,” may apply for DACA benefits. Benefits include deferred action, eligibility for work authorization, and access to higher education; benefits are granted for a 2-year period and may be renewed. Over 750,000 young people, frequently called Dreamers, have received DACA benefits since the program’s inception, based on data from USCIS.
The genesis of DACA is important for at least two key reasons. First, as an exercise of executive action, it is subject to reversal by the same authority. The guidance is subject to judicial challenge and review, like all executive action, but can only be influenced by Congress through the passing of legislation. In fact, executive action undertaken in 2014 that would expand DACA protections and create a similar program for parents of US citizens (Deferred Action for Parents of Americans (DAPA)), was challenged by 26 states. A temporary injunction was issued by the United States Court of Appeals for the Fifth Circuit in New Orleans in February 2015 preventing the expanded program from going into effect. In June 2016, the Supreme Court announced a deadlocked decision, leaving in place the lower court’s injunction.
Second, DACA confers no legal status and no path to citizenship, only temporary relief from deportation proceedings. For undocumented immigrants who have accrued significant unlawful time residing in the US, as many DACA eligible individuals have, there are significant barriers to obtaining citizenship, many requiring extended time residing outside the US prior to re-entry, e.g., a 3-year or 10- year bar under Section 212(a)(9)(B) of the Immigration and Nationality Act, after which a green card may be pursued. While time spent in the US with DACA benefits does not add to accrued unlawful presence durations, it also does not reduce previous years of unlawful presence.
Dreamers face additional challenges on campus, particularly around affording college and participating in study abroad opportunities. Undocumented students are eligible to access higher education, but are not eligible for federal financial aid programs and, depending on the laws of the state in which they reside, may be charged higher out-of-state tuition rates. Approval for travel outside the US requires an extensive application process to be approved for advance parole, which does not provide a guarantee of re-entry.
DACA and the Trump Administration
President Trump has been inconsistent in statements regarding continuation of DACA. While on the campaign trail, he pledged to end both DACA and DAPA, though following his election, his position on DACA softened and he stated on multiple occasions that he wanted to “work something out” for Dreamers. Indeed, this week’s actions by the Department of Homeland Security to significantly step-up enforcement of immigration policies specifically preserves DACA and DAPA (though the injunction on the DACA expansion and DAPA are still in place). At a press briefing on Tuesday, however, White House press secretary Sean Spicer seemed to indicate that the future of DACA remains undecided. In response to questions from reporters, Spicer stated that “everybody who is here illegally is subject to removal at any time” and reiterated that the guidance issued this week does not mean DACA is settled.
The Trump administration has taken a hardline stance regarding immigration, frequently and consistently citing public safety as a primary motivation for stepping up enforcement actions. Targeting unauthorized immigrants who are at-large criminals was also a policy priority for the Bush and Obama administrations. In fact, data from the Pew Research Center shows marked increases in deportations during President Obama’s two terms over previous years, resulting in a net decline in unauthorized immigrants in the US every year since 2007.
Nonetheless, the new DHS memos seek to add 10,000 new ICE agents and 5,000 new CBP agents to accommodate the vast expansion in immigration enforcement. It remains to be seen how the conservatively estimated $1 to $2 billion dollars necessary to hire, train, and equip the new agents will be covered, especially when Congressional Republicans will also need to allocate money to build President Trump’s southern border wall.
Legislative Response: BRIDGE Act
In January, prior to President Trump’s inauguration, a bi-partisan group of Senators introduced Senate Bill 128: Bar Removal of Individuals who Dream and Grow our Economy Act, or the BRIDGE Act, which would enact the DACA program into law and eliminating the threat of executive action to rescind it. The bill has been referred to the Committee on the Judiciary, which has yet to take further action on the bill. An identical bill (House Resolution 496) was similarly introduced by a bi-partisan coalition in the House of Representatives, where it has been referred to the Judiciary Subcommittee on Immigration and Border Security. It is likely that Congressional Republicans may be slow to move the bills forward until they have a stronger signal from the White House about their intent toward Dreamers. In January, 22 higher education associations, including NASPA, submitted a letter in support of the BRIDGE Act to Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL), co-sponsors of the Senate version of the bill.
While there is vast popular support for DACA, including from President Bush’s Education Secretary Margaret Spellings (now President of the University of North Carolina), many states lawmakers are pursuing legislation that would require increased communication between campus law enforcement and ICE, including bills such as Texas Senate Bill 4, which would require campus police to detain individuals until their immigration status can be determined. Several campuses have also declared themselves sanctuary campuses, a term that has no clear legal standing, which has prompted responses by both federal and state legislators related to withholding of funding from such campuses. While the issues around sanctuary campuses are certainly an important aspect of the response to the Trump administrations immigration policies, it is a broader topic that RPI plans to discuss more fully in the future.
RPI will be tracking developments related to DACA, sanctuary campuses, and other immigration issues throughout the coming months, but we’d love to hear your thoughts and questions. Feel free to comment below or reach out to Director of Policy Research & Advocacy, Teri Hinds!