What are the legal stakes for DREAMers if DACA is terminated?

In the first year of his presidency, United States President Donald Trump ended the Deferred Action for Childhood Arrivals (DACA) program started by his predecessor, President Barack Obama. The termination of the program has been temporarily halted by several lawsuits that have argued that the Trump administration’s action was illegal.

In November 2019, the Supreme Court heard oral arguments related to these legal challenges. A final ruling by the justices is expected no later than June 2020. If the Supreme Court sides with the Trump administration, hundreds of thousands of people currently living in the country could face loss of employment and deportation.

DACA has provided stability to more than 800,000 undocumented immigrants whose status in the country had been uncertain. The policy granted those who had arrived illegally in the country as children and had no criminal record permission to remain in the country without fear of expulsion for a period of two years, with the possibility of renewal and work permits.

Those immigrants who are protected under the Obama-era program are known as “Dreamers” (often styled DREAMers).

The name references the DREAM Act, legislation that was first proposed in Congress in 2001 but has yet to be approved by both chambers. This act, which would have offered similar protections as DACA, stands for Development, Relief and Education for Alien Minors.

The Millennial Source contacted legal professionals who have experience in the field of immigration and personal experience assisting Dreamers. They spoke on DACA, the Trump administration’s termination of the program and the effect it will have on DREAMers they represent.

Speaking for the Dreamers

Asked if any of his clients would be directly affected by the Trump administration’s actions, Robert G. Berke stated, “Yes. The fallout will be tremendous.”

Berke, owner of the Los Angeles-based Berke Law Offices, opened his firm in 1990 and has spent his career focused on immigration law, criminal law and attorney disciplinary matters.

“If DACA were to disappear,” J.J. Despain told The Millennial Source, “it would be a huge reversion.” Despain is the managing attorney for the Boise, Idaho office of Wilner & O’Reilly Immigration Lawyers. Prior to working with Wilner & O’Reilly, Despain oversaw the DACA renewal process at the Austin-based Catholic Charities of Central Texas.

“I do have a lot of clients who have had DACA for years,” Despain explained, “which has provided them some stability and livelihood. They do not have lawful status permanently, but they are able to get legal authorization to work and can renew that authorization every two years. And they have the confidence that, as long as they follow the rules, they can at least stay in the United States in that DACA ‘limbo,’ which is better than no immigration status at all.

“Often, DACA can be the gateway to something that does get them permanent status, like being married to a US citizen,” Despain continued.

“The lives that many of these young people have built will be in jeopardy. Many of them would suddenly have no immigration status. And what’s more is that immigration authorities would know who and where they are and who knows what the authorities would do with that information.”

Berke offered a similar assessment, saying that many Dreamers have built lives in the US.

“Some are not so young anymore: many DACA recipients have become parents already.”

Asked about the state of mind of the Dreamers they work with, Despain and Berke both talked about an overriding sense of anxiety.

“For those who have no other options,” Berke said, “they are suffering from the anxiety that always accompanies uncertainty.”

“My clients who have DACA are overwhelmingly anxious,” Despain affirmed. “They are watching the news and they know that the Supreme Court will be making a decision that will affect their lives. I get calls and emails from them often and more often as the Supreme Court’s decision approaches… unfortunately I don’t have any answers for them yet.”

The legal status of DACA and Dreamers

In January 2018, before the termination of DACA went into effect, Judge William Alsup, a District judge in San Francisco, blocked the order. Alsup ruled that the Trump administration had to “maintain the DACA program on a nationwide basis.” Though the program remains in place, lawsuits and appeals have infused uncertainty into the equation, with the Supreme Court set to have the final word on the matter.

“I don’t expect there to be ‘immediate’ consequences,” Berke explained of what he thought would happen if the Supreme Court sided with the Trump administration. “I do expect there to be immediate risks. Very few, if any, DACA recipients are going to be subjected to expedited removal. Our clients who may have had outstanding orders or administratively closed cases have, for the most part, already began building their safety nets or plan-Bs.

“Strategically, our focus right now is looking at each affected client’s circumstances to make sure that they can have some stasis until more pragmatic thinking begins to shape the conversation. In this regard, the current administration’s lack of pragmatism and forethought can be turned to [our] advantage since history teaches that most attempts to deal with immigration monolithically on either the benefits or enforcement side have turned into legal morasses.”

When the Trump administration initially struck down DACA, those who were already grandfathered into the program were permitted to stay on it and even renew their work permits once more. It is possible that the Trump administration would offer a similar stopgap measure after a Supreme Court decision, but that isn’t assured.

“If the DACA program ends entirely,” Despain warned, “anyone who was previously dependent on DACA will have to find an alternative, if there is one. Some alternatives may be even better than what they had before, so it wouldn’t be only bad news. But it would be a significant change, for good or bad.”

Tackling immigration reform

Immigration policy reform has been called the “third rail” in American politics for decades. To take any action on it can appear to be a lose-lose proposition, almost certain to anger some proportion of the population. Appear too lenient on so-called “illegal immigration” and you anger conservatives, support strict border control and deportations and you turn off liberals.

In both his 2016 campaign and this year’s election, ending illegal immigration to the US has been one of Trump’s chief policy positions. In his June 2015 campaign announcement speech, Trump emphasized how he would be strong on border control.

“The US has become a dumping ground for everybody else’s problems,” Trump claimed. “When Mexico sends its people, they’re not sending their best … They’re sending people that have lots of problems and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

Trump’s administration has worked to limit all immigration, not just that of undocumented people. It has sought to limit legal immigration based on financial means and religious belief, as well as placing stricter restrictions on asylum seekers.

Speaking with The Millennial Source on the Trump administration’s actions, David Reischr, a lawyer with Pro Bono LegalAdvice.com, said the practical effect of terminating DACA has been negligible so far.

“The Trump policy has mostly been a lot of sound and fury signifying nothing,” Reischr said. “Other than a stoking of base animosity against DACA recipients, there [has] been at present no legal consequence to my clients from Trump’s actions.”

Though Obama passed DACA and campaigned on providing a pathway to citizenship, his administration was also highly focused on deportations, albeit with a specific focus on people with criminal records.

Comparing the first three years of their administrations, Obama deported more people than Trump. Though both deported fewer people than previous administrations.

Despite the shortcomings of the Obama administration, Trump’s immigration policy has an even darker underpinning according to Berke.

The Trump administration is currently guided by the agenda of Stephen Miller, the Senior White House advisor who has been called “the architect of the president’s assault on immigration.”

With Miller crafting Trump’s immigration policy, the laws have favored white, wealthy immigrants over nonwhites and the poor.

“For the first time in my 30-year career, cruelty seems to be a dominant (if unspoken) policy,” Berke said. “I have been quite shocked by how willing various officers (and even judges) who I thought were normal, decent people were to enforce cruel policies.

“In fairness, I have also been quite pleasantly surprised by how many left their jobs (nice, cushy federal jobs!) because they were unwilling to enforce cruel policies. I hope one day those people will be remembered as heroes.”

Is DACA worth saving?

Despite the legal efforts to preserve the program, DACA has its critics even among those looking to protect undocumented immigrants. In Berke’s perspective, the program was poorly implemented and had obvious shortcomings as a long-term solution.

“The DACA program was flawed and uncertain from the get-go,” Berke told The Millennial Source. “We were very cautious at the outset of the program because it appeared to involve a ‘leap of faith.’”

There was considerable risk for undocumented immigrants to sign up for DACA. They had to tell the government, in Berke’s words, “‘I’m here. I entered without permission, I have no authorization to be here and I thus admit that I can be deported from the United States. And by the way, here’s where I live if you or some future administration should decide at some point in the future to deport me.’”

Berke says the program turned out to be “a bad bet by the Obama administration,” made with good intentions but insufficient foresight. The Trump administration’s shift on immigration has exposed the flaws in DACA, well-intentioned as it might have been.

Despain’s outlook on the program is rosier.

“I do believe DACA is an effective policy. Before DACA, many people in the United States who were law-abiding and productive people were being held back because they simply weren’t born in the United States and had no mechanism for establishing immigration status.

“DACA made it possible for thousands to work, go to school, open businesses and create jobs and start families, because they did not have the threat of immigration consequences hanging over them. DACA was for the immigrants who even hardcore opponents of illegal immigration would likely agree are beneficial to our society and contribute amazing things to the country.”

The politics of immigration

Whether the Supreme Court upholds DACA or allows it to be struck down, one thing is clear: immigration will remain a hot-topic issue for years to come in the US.

“I feel it is important to note,” Berke stated, “that the ‘issue’ of ‘illegal immigration’ is a made up one solely for purposes of making press releases or fear-mongering.”

Politicization has made immigration nearly impossible to tackle effectively, even as there are members of both major political parties who sincerely want to see the nation’s policies fixed.

“Our country has reached a state of political polarization in which the parties cannot work together,” Berke lamented. “I don’t think there’s any lack of desire from majorities in both parties to reach sensible reform, but Congress has been impotent since around 2010.”

Neither political party can claim a moral high ground on the issue, Berke claims, with some of the most “mean-spirited” amendments to the US’s existing immigration laws being passed under Democratic administrations.

Even well-meaning actions have only made the system more convoluted. The “deferred action” as offered by DACA was not a new concept in American politics when the Obama administration authorized it with the program.

Decades of like-minded policies have created a system in which entering the country illegally and gaining amnesty has, at times, been a more realistic – if not easier – option than seeking legal residence.

“If you want to stop illegal immigration,” Berke explained, “you must make legal immigration a practical possibility.”

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