After 10 years of DACA, Dreamers still live in legal limbo

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What’s happening

The Biden administration late last month issued a new rule designed to fortify DACA, the 10-year-old policy started under former President Barack Obama that has shielded from deportation hundreds of thousands of immigrants who were brought to the U.S. illegally as children.

Created in 2012, the Deferred Action for Childhood Arrivals policy granted some undocumented people who entered the U.S. as minors — often called Dreamers — the right to live and work in the country as long as they met certain criteria and weren’t convicted of serious crimes.

“These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag,” Obama said when he established the program. “They are Americans in their heart, in their minds, in every single way but one: on paper.

In the decade since its inception, more than 800,000 Dreamers have taken advantage of the program, and many of them have since become adults who have started businesses, gotten married and had children of their own. Since the executive branch doesn’t have the authority to grant Dreamers permanent legal status or citizenship, DACA was intended to be a temporary stopgap until Congress passed a more comprehensive solution. Bills to do just that, most notably the DREAM Act, have been proposed repeatedly, but each time have failed to advance.

Lack of action from Congress has left the fate of Dreamers in the hands of the executive branch and the courts. Former President Donald Trump tried to repeal DACA early in his presidency, but was blocked by the Supreme Court. An ongoing legal challenge, however, could end the program for good. Last year, a federal judge in Texas ruled that DACA was unconstitutional. The Biden administration has appealed the decision, meaning current DACA recipients are unaffected as of now, but no new applications can be accepted. The case is currently being weighed by the Fifth Circuit Court of Appeals and, depending on the outcome, could ultimately make its way to the U.S. Supreme Court.

Why there’s debate

A strong majority of Americans, including most Republicans, support a permanent status for Dreamers. But the fate of the program is still very much up in the air and there’s significant debate over the best way to end the legal limbo that Dreamers have lived in for the past decade.

There’s some hope among some immigration rights advocates that the looming legal threat to DACA might provide motivation for Congress to finally pass something like the DREAM Act. Accomplishing that, some argue, might require some concessions from Democrats to secure enough Republican votes to overcome a likely filibuster. It may also mean proposing the DACA protections on their own, rather than as part of a larger package of immigration reforms that prompt more heated partisan opposition.

But skeptics say it’s still unlikely that anything substantive gets done. They argue that Republicans aren’t going to want to hand Democrats another legislative victory, especially with control of Congress up for grabs in the November midterm elections. Some advocates on the left say nothing will happen unless Democrats make a much more aggressive push to codify DACA into law during the shrinking window in which they control both the House and Senate.

Many of those same advocates have criticized Biden for not using his power as president to expand DACA so more immigrants are eligible. Some conservatives, though, argue that DACA has always been a severe violation of executive power and the courts would be correct to return full decision-making power over immigration policy back to Congress.

What’s next

The Fifth Circuit’s DACA ruling is expected to be released in the coming weeks. If that decision is appealed, it could be heard by the Supreme Court as early as this fall, with a potential final ruling sometime next year.


There’s at least some hope that Congress might pass a permanent solution

“If there’s any glimmer of hope for DREAMers, it might be in the Senate’s compromise on another highly divisive topic: gun control. … A series of major mass shootings finally galvanized enough bipartisan support to pass a gun safety package earlier this year that didn’t go as far as Democrats wanted, but still introduced tailored reforms. With the right motivation, immigration advocates hope a similar sort of negotiation might be possible on immigration, as well.” — Nicole Narea, Vox

DACA’s existence may actually be making true reform less possible

“The difference is night and day from being undocumented to then having protection from deportation, work authorization and essentially being able to start one's life. … But as an unintended consequence, DACA may have actually taken some of the steam out of a legislative fix that would have provided permanent legal status for undocumented young people.” — Tom Wong, immigration policy researcher, to NPR

The GOP should hold out on DACA until they have more leverage to enact their own immigration reforms

“Ultimately, this is a battle that must be fought in Congress and likely will not advance for Republicans until a president of their party is in the White House. After a year and a half of the Biden administration’s open borders … the American public is likely more receptive than ever to stricter immigration policies. If Republicans in Congress are paying any attention to where their voters are positioned on immigration, they should think twice before caving on amnesty for illegal aliens.” — Jack Wolfsohn, National Review

Republicans’ hard-line anti-immigrant views don’t allow room for nuance

“It’s all a matter of mindset, of course. Republicans could just as easily look at Dreamers as a ready workforce during a labor shortage that’s aggravating inflation, or perhaps even (God forbid!) as human beings. … They can’t seem to separate Dreamers, raised in the same country as them, from new border arrivals.” — Jean Guerrero, Los Angeles Times

An end to DACA would be an important step toward reining in presidential overreach

“Obama’s illegal DACA program caused an incalculable loss of faith in the rule of law. … Until presidents like Biden, Trump, and Obama are forced to drive within the lines, the presidency itself will continue to be the biggest threat to democracy in America.” — Editorial, Washington Examiner

Lawmakers on both sides must abandon political gamesmanship and pass a simple DACA solution

“The argument in Congress has long been about wider policy differences on immigration and border security. Hundreds of thousands of DACA recipients are human pawns on this political chess board. … Congress could pass a clean law to formally legalize the DACA program, and the president could sign it. Everything else is politics.” — Editorial, Orange County Register

Both political parties are too mired in dysfunction to solve the problem

“There’s a core of Republican voters that won’t support giving legal status to any undocumented immigrants, and members … of Congress either agree with them or are wary of crossing them. Meanwhile, Democrats still have trouble getting on the same page, even with control of the White House and slim majorities in both houses of Congress.” — Editorial, San Diego Union-Tribune

The moral argument for protecting Dreamers can only go so far

“A stunted ethical vision is a major issue at hand, but so is irrationality when one considers the financial contributions that DACA recipients make each year (for example, $9.4 billion in taxes alone) along with other markers showing the benefits that DACA has bestowed on recipients and on society at large — and the ultimate value of granting a pathway to citizenship.” — Andrew Moss, Daily Hampshire Gazette

Biden could do much more to protect Dreamers even without Congress

“Because the Biden administration chiefly focused on its battle with the courts, the new rule fails to adopt any substantive measures to expand or strengthen the DACA program. Most conspicuously, the government declined to extend the date that a young immigrant must have arrived in the United States to apply for DACA. … Effectively set an expiration date for DACA regardless of what the courts decide.” — Jacob Hamburger and Stephen Yale-Loehr, Slate

Even overwhelming public opinion won’t be enough to sway Congress

“The failure of Congress to pass federal legislation that would legalize the immigration status of hundreds of thousands of Dreamers is another reminder that polling data and statistics take a back seat when it comes to immigration policy. Politicians and elected officials would much rather pander to the most extreme and fringe elements of their political base.” — Marcela García, Boston Globe

Failure to protect Dreamers means comprehensive immigration reform is all but unimaginable

“The problem of migrants who lack long-term documentation is broader than dreamers. An estimated 6.7 million migrants have lived here for more than a decade; of that cohort, more than half have been here for 20 years or longer. Yet within that population, dreamers are unique. Having been brought to the country as babies, toddlers and teens, they were handed a raw deal. It’s a disgrace that we can’t resolve it.” — Editorial, Washington Post

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Photo illustration: Yahoo News; photos: Kent Nishimura/Los Angeles Times via Getty Images