Supreme Court May Rule Against DACA, But It Won’t Be the End of the Fight

They spent seven years living as temporary Americans, and now their time may be running out. As the beneficiaries of the Obama-era Deferred Action for Childhood Arrivals (DACA) program wait for the Supreme Court to decide whether to allow the Trump administration to strip them of their ability to work and their protection from deportation, hundreds of thousands of young people are thinking about what life will look like if their legal reprieve expires.

As a temporary shield from deportation, DACA was a major step toward providing stable legal status to a significant swath of the undocumented population — generally those who arrived as children and are working or attending school, and have proven they have “clean” records. Under Obama, the program allowed eligible young migrants to avoid deportation and obtain a work permit, renewable every two years. But Trump repealed the administrative order for DACA in September 2017. While the legal challenges to that order are pending, about 670,000 young people could soon lose their right to live and work legally in their adopted homeland.

Yatziri Tovar of Make the Road New York, a former DACA recipient who was recently able to adjust her status, said that while awaiting the court’s decision (which is expected by June 2020), her group is maintaining a tight-knit support network for DACA recipients. “In this time of uncertainty, just waiting for a decision can be very difficult [for] your emotional and your mental health, and so another thing that we’re doing is just having these regular check-ins and having these conversations about different scenarios that would happen and how people are feeling,” Tovar told Truthout.

The pending Supreme Court case centers on the charge that the administration’s rescission was arbitrary and failed to satisfy the Administrative Procedure Act, which requires clear legal justification and public consultation. It marks the culmination of several lawsuits brought by a coalition of state authorities, civil rights groups and individuals, overlaid with a haze of political rancor, congressional standoffs and mass protests.

A huge rally of DACA supporters set the mood for the oral arguments in November, but when presented with the plaintiff’s argument that the termination of DACA was illegal, the justices appeared skeptical. Some court watchers are speculating that the court could rule in Trump’s favor. Moreover, there’s a chance that DACA could be upheld but the Trump administration could still end up killing DACA, if it can attempt a do-over of the measure that adheres to procedural regulations.

What’s at Stake

A Supreme Court victory for Trump would not be unprecedented; the White House prevailed in a pivotal legal challenge to the Muslim ban last year, when the court upheld Trump’s extreme restrictions on travel from several predominantly Muslim countries and wrought turmoil in many immigrant communities. But a win for the administration on DACA would likely result in an even messier, more confusing process. A travel ban involves barring people from entering the country in the first place, but the individuals who would lose DACA status — with varying expiration dates spread over many months — would potentially affect not just the “DACAmented” but millions of family members, coworkers, classmates and fellow activists. Since they are able to work and attend college, DACAmented young people are often the anchors of mixed-status families, which include family members with and without papers.

Sanaa Abrar ­– an organizer with United We Dream, the largest immigrant youth-led network in the U.S. — said that for now, the organization is focusing on encouraging people to renew DACA if they still can (only renewals for current DACA recipients; no new applications are being processed), which could extend their protection for many months beyond the court ruling.

“Regardless of what happens with the Supreme Court decision, one of our main interests is to ensure that folks’ protection from deportation is extended as long as possible,” Abrar said.

United We Dream is also stepping up efforts to provide legal support to DACA recipients in the renewal process. Other organizations are offering grants to pay the renewal fee (about $500).

As of mid-October, roughly 98,000 individuals are set to see their DACA expire by the end of 2019, more than two-thirds of whom had already renewed; in the following year, about 300,000 people are set to lose their status, most of whom had not yet renewed. As DACA expirations proceed through 2020, there could be as many as 5,930 to 34,250 expirations per month.

Whatever the fate of DACA at the high court, immigrant rights advocates see a comprehensive legislative solution as the ultimate goal. Even Trump has made overtures toward “making a deal” on DACA, though his efforts have largely resulted in legislative sabotage rather than compromise.

After Trump was elected on a virulently anti-immigrant platform, he initially expressed some willingness to spare DACA recipients, only to announce the termination of the program the following September. Democrats in Congress scrambled to try to negotiate a deal and eventually proposed the Dream and Promise Act, which would expand and extend relief for DACA recipients as well as other forms of conditional status, including Temporary Protected Status, which applies to more than 300,000 individuals from El Salvador, Honduras, Somalia, Haiti and other countries. The bill would offer them a path to citizenship and make them eligible for federal loans and other financial aid.

Though the House has repeatedly pushed for a legislative compromise, for over two years, Trump has blocked Democrats’ reform proposals, by insisting on including a number of measures aimed at sabotaging the bill, including: curtailing family-based green cards, easing rules on deporting immigrants who have overstayed their visas or been convicted of certain crimes, restricting access to asylum, and imposing a mandatory system for employers to verify immigrants’ employment eligibility. Trump’s conditions cut sharply against the advocacy that DACAmented youth have helped lead for years, championing a total overhaul of immigration policy and an end to the mass arrests, detentions, family separations and deportations at the center of Trump’s anti-immigrant agenda.

Angelica Salas, executive director of the Los Angeles-based Coalition for Humane Immigrant Rights sees little hope for a legislative solution under the current administration: If Trump were serious about a deal, she said, he would pass a “clean” bill. “The problem here is that he wants to attach everything…. And so, it’s not really a deal, it’s extortion, in the sense that, ‘I’ll give you the protection for immigrant youth, but you give me everybody else.'”

Economic Impact

Although the deportation reprieve has been DACA’s major legal benefit, the work authorization that came with DACA was what really changed lives. Many have earned degrees and joined the ranks of teachers, attorneys, health care workers and scientific researchers.

A survey by the Center for American Progress, the National Immigration Law Center and United We Dream found that some 96 percent of DACA recipients were enrolled in school or working. Since receiving DACA, respondents reported an hourly wage increase of nearly 80 percent, with hourly wages nearly doubling for those 25 and older. Roughly one in seven had purchased a first home. Nearly two in three reported feeling more like they “belong in the U.S.”

According to the New American Economy research fund, the DACA-eligible population earned an estimated $23.4 billion in 2017 alone, and paid about $2.2 billion and $1.8 billion in federal and combined state and local taxes, respectively.

A study by Harvard University researchers found that, although DACAmented workers and students still faced setbacks due to delays in beginning their careers or completing higher education, the program had dramatically improved their economic prospects and “afforded new protection and agency that facilitates political learning and democratic participation.”

The amicus brief submitted to the Supreme Court by the AFL-CIO, Service Employees International Union and the American Federation of State, County and Municipal Employees, depicted the plight of several DACA recipients who have also been active union members: An assistant county attorney in Texas who fears losing his government job if DACA is rescinded. A homecare worker from El Salvador who credited DACA with allowing him to escape criminal gangs in his homeland and “allow[ing] me to live in safety and security in the U.S.” A doctor who recalled that when his DACA lapsed for several weeks during his medical internship, “I was thrust back into the status of an unwelcome, alien intruder.”

If DACA recipients lose their work authorization, they might have to return to the vast “underground economy” that has fed off the marginalization of the undocumented labor force — perhaps picking up construction work or odd jobs that don’t screen applicants for eligibility. Already, there are some reports of employers expressing reluctance about hiring or promoting DACA recipients due to uncertainty about their future status. There is also the liability that comes with visibility; the DACAmented are already well-known to the federal government, having submitted much of their personal data when applying for DACA.

The legal uncertainty breeds chronic insecurity. The Harvard study underscored that prior to DACA, young undocumented immigrants were in many cases suffering deep “psychological distress,” constantly wracked by “fear, anxiety, and disillusion” with “physical side effects like exhaustion, headaches, and ulcers.” Beyond the economic and educational setbacks, those invisible social burdens could resurface if DACA disappears.

A defeat in the Supreme Court would send a bleak signal to the immigrant rights movement. After all, the DACAmented — part of a subset of the immigrant population known as “Dreamers” — have broad public support, and present themselves as high-achieving Americans in all but legal status. That their status could evaporate with the swipe of Trump’s pen reveals that their future in this country has never truly been secure.

The anxieties that have emerged under the threat looming over the program show the endemic inequities of the politics of DACA, which were based on the notion that educationally ambitious, upward-striving, law-abiding youth deserved to be spared from the deportation gauntlet. Their legal privilege by default implied that other immigrants were less deserving — because they were older, or had criminal records, or weren’t employed or attending school.

Nonetheless, DACAmented activists have always recognized that in order to fully assert the humanity of all migrants, the movement must resist Washington’s efforts to divide communities through borders and legal designations. Under Obama, they pushed for DACA to be extended to parents of immigrant and citizen children, and protested against the entire deportation and detention regime. And now, their legal fight to save DACA itself is a portent of the bigger battle ahead.

Catalina Adorno, a DACA recipient and organizer with the immigrant rights group Movimiento Cosecha, pointed out that long before DACA was passed, undocumented young people built their own protections, supporting their entire communities, across generations.

The potential loss of DACA, she said, would “affect a lot of people’s lives … but I also want to remind us how life was before DACA.” Before they got temporary status, undocumented youth like her were still attending college, and many undocumented youth did manage to work even without a permit. “I want to remind us of the resiliency that we have, in that we were hustling way before [DACA],” she added. “And so, I’m like, ‘Yes, it feels like our whole world is ending. But also, we were able to do this before DACA….There was life before DACA. We were resisting, we were fighting. And it will be OK.”

Resistance

The DACA fight now extends well beyond the program itself; activists are drawing on networks of community organizations, faith groups, legal advocates, schools and universities, employers and unions — organizing for mutual aid and solidarity across immigrant communities and allies.

“We were here before DACA and we’re going to be here after DACA,” Abrar said. “It was because of undocumented youth and their families taking the huge, courageous step to come out and declare themselves undocumented and unafraid, that we were able to win the creative intervention that was DACA in the first place.”

On the state and local level, DACA youth continue to campaign on behalf of the entire undocumented population, demanding expansion of local protections and social supports. Their advocacy has helped push some states and cities to wield their executive power to declare themselves sanctuary cities — refusing to collaborate with immigration enforcement; to extend undocumented students’ access to public colleges and universities; and, in 15 states and Washington, D.C., to pass legislation enabling undocumented immigrants to obtain driver’s licenses. In some states, indirect local-level resistance has grown to include health care coverage for the families of undocumented immigrants and anti-wage theft laws that cover all workers regardless of status.

Adorno sees the potential loss of DACA as a galvanizing challenge for grassroots movements. “We know that things can only happen when our community organizes and fights for it,” she said. Whatever the court decides, “that really is what we see as the most important thing for us — that the immigrant community is organized, that they’re coming together, and that these young folks are fighting for what they want — to not allow any politicians to give us crumbs, or to say, ‘This is what I think you want.’ [We can] come up with the solutions because we are the ones that live every day with our ‘undocumentation.’”

The looming threat of losing DACA only underscores the organizing principle that has always held firm for undocumented youth activists, regardless of the White House’s position: their legal status might depend on the whims of politicians or a court’s decree, but their rights are defined on their own terms, with or without papers.