March 5th DACA deadline may be obsolete, but uncertainty is increasing for Dreamers
The original date the Trump administration set for the expiration of the Deferred Action for Childhood Arrivals (DACA) program is only one week away. Legal challenges and congressional inaction have delayed the end of the program, but it has not brought any relief to the nearly 800,000 Dreamers, the immigrants who are currently shielded from deportation and allowed to work and go to school under DACA.
On Monday morning, the U.S. Supreme Court refused the Trump administration's request to weigh in on the status of Dreamers. The court denied the Justice Department's request for an expedited hearing on the legality of the program, saying it would wait until the lower courts rule before taking up the contentious immigration issue.
In September, President Donald Trump announced he was phasing out the DACA program, giving Congress until March 5 to deal with the issue legislatively. The Department of Homeland Security explained Trump's decision to phase out protections for children brought to the country illegally as children was a legal issue.
The Department was facing multiple lawsuits claiming President Barack Obama exceeded his authority in creating the DACA through executive action in 2012. Rather than allowing the issue to be resolved by the courts, where the administration believed it would have been ended by court order, the White House chose to wind down DACA in an "orderly and minimally disruptive manner."
The decision was met with immediate resistance from immigration advocates who challenged Trump's reasons for ending DACA as "arbitrary and capricious." In January, a federal district judge in San Francisco heard complaints brought by multiple state attorneys general against the administration and issued an injunction ordering the administration to "maintain the DACA program on a nationwide basis" until the underlying case was resolved. On February 13, a federal district judge in Brooklyn, New York issued a similar injunction.
Both actions in California and New York effectively blocked the administration from ending the program.
The Trump Department of Justice took an extraordinary step when it sought to bypass the appeals court and bring the issue directly to the Supreme Court for a swift resolution, and many legal experts were not surprised on Monday when that request was denied.
With the Supreme Court's inaction on Monday and the pending appeals in California and New York courts, the DACA program will be extended beyond March 5. However, with the courts battling over the future of the program and no signs indicating Congress will resolve the issue legislatively, the fate of Dreamers is has become even more uncertain.
in California and New York courts, the DACA program will be extended beyond March 5. However, with the courts battling over the future of the program and no signs indicating Congress will resolve the issue legislatively, the fate of Dreamers is has become even more uncertain.
Trump added to that uncertainty on Friday, when he told a gathering at the Conservative Political Action Conference that because Democrats in Congress "are being totally unresponsive" to the White House proposals, there may not be a legislative fix for Dreamers.
"It's very possible that DACA won't happen," the president said.
WHAT DOES THAT MEAN FOR MARCH 5?
The nationwide injunctions may have bought extra time for Dreamers to reapply for work permits and protected status, but it hardly comes as a relief.
"I don't think anybody's taking a breath," said Theresa Cardinal Brown, immigration director at the Bipartisan Policy Center and former DHS policy adviser. "I think it makes thing a lot more uncertain."
The March 5 deadline is no longer in play, after the New York and California injunctions and for the foreseeable future, the government will be required to continue accepting DACA renewal applications until and unless another court rules otherwise.
Despite the temporary continuation of DACA, there is still a big question mark over the timing of that court decision. It could come in a matter of weeks or months, and it is unclear how it will be resolved. There is also the further likelihood that either side could appeal a ruling and the Supreme Court could again be asked to weigh in on the legality of ending DACA.
"If March 5 isn't a deadline, then we don't know when the deadline is and that's actually more dangerous," she said, noting a sudden court order could end the program even more abruptly. "Now nobody knows."
While the issue is litigated, the Trump administration also has a lot of leeway to decide how it processes DACA renewal applications and whether it takes action against Dreamers' whose status has lapsed, or who have aged out of the program that covers individuals born after June 1981.
Because the original program was implemented through executive action, Trump can dismantle the program through executive action, regardless of the injunction.
"There is nothing in the court's order that says the DACA process has to continue," explained William Stock, top immigration lawyer and former president of the American Immigration Lawyers Association.
The decision by the judges in California and New York stated that the Justice Department was incorrect to end DACA using the argument that it was illegal or unconstitutional to continue the program.
If Donald Trump had a different reason for stopping the program, he could end it tomorrow by executive action, Stock added. "But you would have to end it by saying you want to end it not that you have to end it," a move that could prove to be politically perilous.
According to one recent poll by CBS News, nearly nine out of ten Americans believe Dreamers should be allowed to stay in the country if they are working or going to school. Other polls have shown as many as one in eight Americans want to see Dreamers given the opportunity to become citizens.
Donald Trump has said on numerous occasions that he wants to legalize Dreamers. In his immigration outline sent to Congress last month, he called for a pathway to citizenship for approximately 1.8 million Dreamers or DACA-eligible individuals. Earlier this month he pledged, "We are gonna deal with DACA with heart."
Without a firm decision from the courts or Congress on the fate of Dreamers, they are stuck in a kind of legal limbo. Already, DACA recipients who failed to reapply have become ineligible for protected status and work permits and the Department of Homeland Security stopped accepting new applicants to the program months ago. Other limitations on DACA eligibility include criminality, not being enrolled in school or unemployment.
Moreover, while Immigration and Customs Enforcement have said they will not prioritize former DACA recipients for removal, ICE leadership has also made it clear that anyone in the country illegally is subject to removal. That includes DACA recipients whose status has lapsed.
According to Ira Mehlman, media director at the Federation for American Immigration Reform, uncertainty for Dreamers began with Obama's executive action, not Trump.
"No promises have been made to DACA recipients," Mehlman said. "When President Obama established DACA in 2012, he made it clear that the program might not outlast his administration."
WILL CONGRESS ACT?
The only certain path forward for Dreamers is for Congress to change the immigration law. Earlier this month, the Senate openly debated numerous proposals for legalizing DACA recipients and failed to advance a single piece of legislation that could earn 60 votes.
President Trump has contributed to the discord on Capitol Hill by repeatedly telling lawmakers he will not sign a bill for Dreamers unless it also meets three other core immigration demands. According to the White House, any DACA bill must include resources for border security, including funding for the U.S.-Mexico border wall, and reform legal immigration by limiting family migration to spouses and minor children and implementing a "merit-based" immigration system.
A bipartisan group of senators was able to reach an agreement on border security and DACA, but rejected Trump's "four pillars" proposal, arguing that the diversity visa lottery and so-called chain migration should be dealt with through comprehensive immigration reform.
With the House only scheduled to vote through Wednesday and the original March 5 DACA deadline just one week away, imminent action from Congress is not likely. However, that does not mean the pressure has let up.
In the past week, Donald Trump has issued a series of tweets saying he and Republicans "stand ready to make a deal" on Dreamers, and accusing Democrats of abandoning the immigration issue.
The White House has also signaled that if Congress is unable to agree on a long-term fix for DACA, President Trump will not unilaterally extend the program. Chief of Staff John Kelly told reporters earlier this month, "I doubt very much" that Trump will extend the program.
Moreover, Trump has also struck down various Republican proposals to temporarily extend DACA from anywhere between one to three years. As the Senate was beginning its DACA debate on February 13, Trump issued a statement saying he would oppose any "short-term 'Band-Aid' approach."
Sen. Jeff Flake of Arizona is currently proposing a "Band-Aid" approach that includes a three-year DACA extension attached to $7.6 billion for border security. Sen. Marco Rubio of Florida was skeptical of the proposal calling it "Plan Z." Sen. Lindsey Graham of South Carolina has suggested Congress may only be able to agree on a one-year extension, to punt the issue through the 2018 mid-term elections.
"A lot of members of Congress want to do something," Brown stated, noting that a number of lawmakers are still looking at the month of March with a sense of urgency because of another deadline: March 23.
March 23 is the date Congress must pass an omnibus spending bill to fund the government or face (another) shutdown.
"Politically there is some desire to try to see what can be done before the funding deadline," Brown said.
That includes the possibility of inserting a short-term DACA extension into the omnibus spending bill or trying to push through a bipartisan plan to beef up border security and provide legal status for Dreamers. Such a bill would be more difficult for the president to reject.
If a DACA proposal is not included in this month's spending bill, it will be less likely ti see Congress take any kind of action before the courts weigh in, Brown said.
"Congress ultimately does have an ability to decide the fate of the Dreamers. They always have. They can create a permanent program, they can legislatively extend the program, and that would obviate the need for any court action," she explained. "Whether or not Congress can get something done is another question entirely."