Article
Amicus Curiae Blog (November 5, 2021)

Undreaming the Dream: the Future of DACA

By Favio Ramirez Caminatti*

Introduction

Imagine that you were raised as an average American child. You have a family and a home with a white picket fence. You graduated from a public school and, while attending high school, think about what college fits better to pursue your dreamed career. You live a normal life, until one day your parents tell you that you cannot go to college because you are an undocumented immigrant. That is what happened to hundreds of thousands of teenagers until 2012.

You may think: how is that possible if I have lived here since I have memory, I have no connections with any other country or culture, I only speak English, and I love our nation? Well, that is not enough. Until 2012, these individuals, who arrived in the United States as children, could be detained and deported at any time; they were rejected from most universities or were ineligible to receive reduced tuition as an in-state resident, and could not work legally. The Deferred Action for Childhood Arrivals (“DACA”) changed that. However, in subsequent years, President Barack Obama’s executive action that created the DACA program has faced many legal and political challenges. It is time to define the future of DACA and that is only possible resolving it as what it is, a matter of public policy.

I. From Nightmare to Dream

A.  Living the Dream

1. The Beginning

The United States is recognized worldwide as a land of opportunities, social justice, and freedom; values that have attracted generations of immigrants.1 Since the very beginning, people have left their homes to pursue the “American Dream.”2 This concept, coined in 1931, defined the American Dream as “a vision of a better, deeper, richer life for every individual, regardless of the position in society which he or she may occupy by the accident of birth.”3

While the concept may have varied with history, every day hundreds of persons try to come to America pursuing freedom and justice. Many people do not qualify for lawful entry due to the complexity of our immigration system, and decide to risk their lives crossing the border illegally. Some of them embark on this journey together with their minor children, sometimes including infants only a few months old.4 These children who enter unlawfully with their parents eventually grow up in the U.S., as Americans in everything but name, only to learn that they are not legally present in the country.

2. The New Beginning

DACA is a policy implemented through executive action by President Barack Obama that was announced on June 15, 2012, and formally went into effect on August 15, 2012.5 Under the program, the Executive Branch directed the Department of Homeland Security (“DHS”) to exercise prosecutorial discretion towards certain immigrants that met specific criteria.6 More specifically, the program was designed to protect from deportation those immigrants who: (1) were brought to the United States before the age of sixteen and were less than thrirty-one years old on June 15, 2012, the effective date of the program; (2) had continuous residence in the U.S. since June 15, 2007, five years prior to announcement of the program; (3) were currently in school or graduated from high school; and (4) had not been convicted of a felony, significant misdemeanor, multiple misdemeanors, and did not otherwise pose a threat to national security or public safety.7 Those who meet these criteria are eligible to apply for DACA and are commonly known as “Dreamers.”8

DACA is not an amnesty and does not confer permanent legal immigration status. DACA does not grant applicants Lawful Permanent Resident (“LPR”) status or create a path to citizenship. DACA recipients cannot sponsor family members for immigration relief and they are not eligible for federal benefits including federal student aid through the Free Application for Federal Student Aid (“FAFSA”), subsidized health insurance plans through the Affordable Care Act, Supplemental Nutrition Assistance Program (“SNAP”) (food stamps), and Section VIII, among others. Nevertheless, despite these limitations, the policy worked “as a stopgap measure to shield from deportation people who were brought into the United States as children.”9

In immigration law, Deferred Action is an extraordinary relief “where the government takes no action to remove a person although the person may be technically inadmissible or deportable.”10 Historically, this kind of action has been applied to larger groups of immigrants who met certain criteria because “prosecutorial discretion is the inherent discretionary authority that the [Executive Branch] has with respect to how it enforces the law.”11 Moreover, the judicial branch has recognized that DHS, as the agency in charge of the enforcement of immigration violations, has broad authority to exercise prosecutorial discretion as a principal feature of the removal system.12

3. The Impact

Approximately 1.8 million undocumented immigrants entered the United States prior to their sixteenth birthday and meet the basic age requirement to apply for DACA.13 Around 800,000 young immigrants qualified for DACA, and 643,560 of them remain in the program as of March 2020.14 They received work permits and pay taxes, changing the economy immediately.15 They trusted in the federal government and voluntarily surrendered their personal information to DHS.16 Also, nearly 1,000 of them have served or are currently serving in the military.17

DACA has “encouraged young immigrants to stay in school, has expanded their job opportunities,”18 and contributed to reduce poverty rates nationally.19 DACA has impacted almost every area, from the economy to social life, from education to science, and it “has been unreservedly good for the U.S. economy and for U.S. society more generally.”20

B. Leaving the Dream

4. A Temporary Relief

Several researchers conclude that DACA created a positive impact and the results of the program had an indisputable success.21 A research study from Harvard University notes that “DACA has given its beneficiaries and their families a giant boost and they have achieved significant social mobility.”22 Nonetheless, the policy has faced intense political and judicial debate, mostly due to the nature of the program that was created as a temporary relief.23

In September 2017, the Trump Administration announced a plan to end DACA.24 President Donald Trump called the policy an “amnesty-first approach” and, like President Obama, urged Congress to pass legislation addressing the issue.25 Nevertheless, on September 5, 2017, DHS Acting Secretary Elaine Duke issued a memorandum, based on a legal opinion issued by Attorney General Jeff Sessions, stating that the program was unlawful, rescinding the policy and instructing the Department to “take all appropriate actions to execute a wind-down of the program.”26

5. Defying the Dream

Shortly after the announcement ending DACA, litigation began in lower court jurisdictions challenging DHS’s decision, until it reached the U.S. Supreme Court, which heard oral arguments on November 12, 2019.27

On June 18, 2020, the Court ruled that the DHS decision to rescind the program violated the Administrative Procedures Act (“APA”) “by failing to adequately address important factors bearing on [the government’s] decision,”28 and that it was “arbitrary and capricious.”29 The Supreme Court also found that the federal government “failed to address whether there was ‘legitimate reliance.’”30 Nevertheless, the decision recognizes that the program may finish if the federal government follows the correct process to do that.31

6. Keep Dreaming

It is not a surprise that DACA has continued being litigated after the Supreme Court’s decision. On July 16, 2021, the Federal District Court for the Southern District of Texas blocked the policy affirming that “DHS violated the APA with the creation of DACA and its continued operation.”32 Although the order allowed DHS to continue accepting the filing of both initial and renewal DACA requests, it prohibited the agency from granting initial DACA requests submitted after July 16, 2021.33 The order remains in effect but the litigation over the policy continues. On September 10, 2021, the U.S. Department of Justice filed a notice of appeal in the Fifth Circuit Court of Appeals to begin the process to challenge the order of the District Court.34 On September 28, 2021, DHS published a Notice of Proposed Rulemaking on DACA saying that the “Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country.”35 Although DHS Secretary Mayorkas stated that this “is an important step to achieve that goal,” however, “only Congress can provide permanent protection.”36 According to the government, this new rule addresses the court’s APA concerns and “address a host of subjects the original memorandum failed to touch on.”37 After the sixty-day period in the Federal Register,38 the federal government will analyze the comments and publish (or not) a final rule.

Regardless of whether the rule is adopted, DACA will remain in danger until Congress decides to act. At its most extreme, if the program were eliminated without an alternative and the estimated 800,000 DACA holders were removed from the United States, it is projected that the United States will lose $460.3 billion in economic growth over the next decade.39 The impact of removing DACA recipients from the national workforce will negatively impact the states, leading to an estimated annual loss in Gross Domestic Product ranging from $11.6 billion in California (the state with the largest population of DACA workers), $6.3 billion in Texas and $2.6 billion in New York, to $376.7 million in Minnesota, and $2.4 million in Vermont, the home state of only forty-two Dreamers.40

C.  Immigration Is a Public Policy

Any disposition that directly regulates the life of almost a million people—and their families—living all across the United States, that affects the economy, taxation, employment, education, health care, and social life of the nation is a public policy and should be treated as such. DACA allowed Dreamers to have a driver’s license, a work permit, go to college, apply for a mortgage, and pay taxes as every other American.41 However, their ability to stay in the United States is tenuous at best, and they still live with fear of deportation. They are our neighbors, our classmates, our nurses and teachers; they are business owners and our co-workers; they sit next to us in our church and in restaurants. They are an important part of our economy and our social life, but continue to pay for a decision made on their behalf when they were children.

The DACA policy has been politicized and judicialized. While the political parties discuss potential legislation and alternatives, as has been happening since the program was announced, Dreamers continue fearing for their future. As the cases continue to be litigated in the courts, as they have been since 2017, Dreamers continue dreaming with a future in America, the only country they know and love.

Conclusion

As Martin Luther King, Jr. said, “[t]he American dream reminds us . . . that every man is an heir of the legacy of dignity and worth.”42 There is no fault in someone who was brought to this country being a child; there is neither intent nor consent to do something wrong. In the land of the free and home of brave, that person must be treated with dignity and worth.

“[I]f the American dream is to be a reality, we must work to make it a reality and realize the urgency of the moment.”43 DACA neither resists nor deserves being a political narrative or a docket in the court system. It is time for the Congress to set aside partisanship and work on real and permanent solutions for these young people. It is time to demonstrate that the American Dream is still alive.

Footnotes

* Favio Ramirez Caminatti is a J.D. Candidate 2022 at Mitchell Hamline School of Law, where he was Board Member of the ACLU Chapter, and the Latino Law Student Association. He serves as Permanent Representative at United Nations. Previously, he was the Executive Director of El Centro del Inmigrante in New York, and Chairman of the Staten Island Immigrants Council.↩︎

  1. Suzanne Ozment, Land of Opportunity—Essay, AM. LIBR. ASS’N. 1 http://www.ala.org/tools/sites/ala.org.tools/files/content/land-of-opportunity.pdf [https://perma.cc/NEX5-XC5X]. ↩︎
  2. See generally John F. Kennedy, A Nation of Immigrants (Harper Perennial Mod. Classics; eds. 2018). ↩︎
  3. Lawrence R. Samueal, The American Middle Class: A Cultural History 7 (Routledge 1st ed. 2013) (quoting James Truslow Adams, The Epic of America (Little, Brown, and Co. 1st ed. 1931)). ↩︎
  4. Jeanne-Marie R. Stacciarini & Rebekah Felicia Smith, I didn’t ask to come to this country . . . I was a child: The mental health implications of growing up undocumented, J. Immigrant & Minority Health (August 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4276733/), [https://perma.cc/32A7-B9NY]. ↩︎
  5. Memorandum from Secretary of Homeland Security Janet Napolitano 1 (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [https://perma.cc/Z8LC-U2SE]. ↩︎
  6. Id. ↩︎
  7. Id. ↩︎
  8. The Dream Act: An Overview, Am. Immigr. Council (Mar. 16, 2021) https://www.americanimmigrationcouncil.org/research/dream-act-overview [https://perma.cc/CTP3-JWKT] ↩︎
  9. Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (July 3, 2020), https://www.nytimes.com/article/what-is-daca.html [https://perma.cc/6GMF-427T]. ↩︎
  10. Am. Immigr. Laws. Ass’n, Navigating the Fundamentals of Immigration Law 2 (Lindsay Chichester Koren et al. eds., 2019). ↩︎
  11. AM. IMMIGR. COUNCIL, PRACTICE ADVISORY 2 (2015), https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/pd_overview_final.pdf [https://perma.cc/ 24SF-CX2X]. ↩︎
  12. Arizona v. United States, 567 U.S. 387, 396 (2012). ↩︎
  13. Alan Gomez, Who Are the DACA DREAMers and How Many Are Here?, USA Today (Feb. 13, 2018), https://www.usatoday.com/story/news/politics/2018/02/13/who-daca-dreamers-and-how-many-here/333045002/ [https://perma.cc/AB4P-NRTX]. ↩︎
  14. Migration Pol’y Inst., Deferred Action for Childhood Arrivals (DACA) Data Tools (June 20, 2020, 9:50 PM), https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles [https://perma.cc/B9XD-R8PN]. ↩︎
  15. Courtney Vinopal, What Ending DACA Could Cost the U.S. Economy, PBS News Hour (Nov. 12, 2019), https://www.pbs.org/newshour/economy/making-sense/what-ending-daca-could-cost-the-u-s-economy [https://perma.cc/GDW5-T4PJ]. ↩︎
  16. Hannah Brem, DHS Proposes Rule to Protect DACA Policy, Jurist (Sept. 27, 2021), https://www.jurist.org/news/2021/09/dhs-proposes-rule-to-protect-daca-policy/ [https://perma.cc/55XA-N58T] ↩︎
  17. Deferred Action for Childhood Arrival (DACA) Recipients Serving in the Military, U.S. Citizenship & Immigr. Serv. (2017) https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_Military_Data.pdf [https://perma.cc/3AE8-VGJB]. ↩︎
  18. Katherine Fennelly, Focus on Minnesota 2 (June 2016), https://www.ilcm.org/wp-content/uploads/2016/06/Economic-Impacts-of-DACA-DAPA-in-Minnesota_2016.pdf [https://perma.cc/MDD3-VJBJ]. ↩︎
  19. Hirozaku Yoshikawa & Jenya Kholoptseva, Unauthorized Immigrant Parents and Their Children’s Development. A Summary of the Evidence, Migration Pol’y Inst. (Mar., 2013), https://www.fcd-us.org/assets/2013/03/COI-Yoshikawa-1.pdf [https://perma.cc/8AN6-MULK] (noting that DACA recipients receive a valid social security number when they obtain work permits, thus making them eligible for the earned income tax credit, which is the nation’s largest direct poverty production program). ↩︎
  20. Tom K. Wong, Greisa Martinez Rosas, Adam Luna, Henry Manning, Adrian Reyna, Patrick O’Shea, Tom Jawetz, & Philip E. Wolgin, DACA Recipients’ Economic and Educational Gains Continue to Grow, Ctr. for Am. Progress (Aug. 28, 2017, 9:01 AM), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow/ [https://perma.cc/BV5X-J3KS]. ↩︎
  21. Roberto G. Gonzales, Sayil Camacho, Kristina Brant & Carlos Aguilar, The Long-Term Impact of DACA: Forging Futures Despite DACA’s Uncertainty 39 (Harv. Univ. 2019) ↩︎
  22. Id. ↩︎
  23. DACA Dreamers: What Is This Immigration Debate All About?, BBC(Nov. 12, 2019), https://www.bbc.com/news/world-us-canada-41128905 [https://perma.cc/GRG2-87SL]. ↩︎
  24. Carrie Johnson, Trump Administration Announces Plan to End DACA Program, NPR (Sept. 5, 2017), https://www.npr.org/2017/09/05/548715197/trump-administration-announces-plan-to-end-daca-program [https://perma.cc/YRG5-YMEX]. ↩︎
  25. Michael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times (Sept. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html. ↩︎
  26. Memorandum from Acting Secretary of Homeland Security Elaine C. Duke (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. ↩︎
  27. Transcript of Oral Argument, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal. , 140 S. Ct. 1891, 1896 (2020) (No. 18-587). ↩︎
  28. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1901 (2020). ↩︎
  29. Id. at 1903. ↩︎
  30. Id. at 1913. ↩︎
  31. Id. at 1905. ↩︎
  32. Texas v. United States, No. 1:18-CV-00068, 2021 U.S. Dist. LEXIS 133114, at *120 (S.D. Tex. July 16, 2021). ↩︎
  33. Additional Information: DACA Decision in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068, (S.D. Texas July 16, 2021) (“Texas II”), U.S. Citizenship Immigr. Serv. (Aug. 31, 2021), https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-118-cv [htttps://perma.cc/6RLQ-BE3V]. ↩︎
  34. Notice of Appeal, Sept. 10, 2021, ECF No. 581. ↩︎
  35. Memorandum from Department of Homeland Security (September 27, 2021), https://www.dhs.gov/news/2021/09/27/dhs-publish-notice-proposed-rulemaking-daca [https://perma.cc/5S6J-6UNZ]. ↩︎
  36. Id. ↩︎
  37. Grace Dixon, Feds Can’t Put DACA Challenge On Hold For Rulemaking, Law360 (Oct. 18, 2021), https://www.law360.com/immigration/articles/1431892. ↩︎
  38. Deferred Action for Childhood Arrivals 86 Fed. Reg. 53736 (proposed September 8, 2021) (to be codified at 8 C.F.R. pt. 106) https://www.federalregister.gov/documents/2021/09/28/2021-20898/deferred-action-for-childhood-arrivals [https://perma.cc/233W-B2JH]. ↩︎
  39. Nicole Prchal Svajlenka & Tom Jawetz, A New Threat to DACA Could Cost States Billions of Dollars, Ctr. for Am. Progress (July 21, 2017) https://www.americanprogress.org/issues/immigration/news/2017/07/21/436419/new-threat-daca-cost-states-billions-dollars/ [https://perma.cc/8DSP-JA5E]. ↩︎
  40. Id. ↩︎
  41. Silva Mathima, What DACA Recipients Stand to Lose-and What States Can Do About It, Ctr. for Am. Progress (Sept. 13, 2018) https://www.americanprogress.org/issues/immigration/reports/2018/09/13/458008/daca-recipients-stand-lose-states-can/ [https://perma.cc/RPV8-94ZM]. ↩︎
  42. Martin Luther King, Jr., The American Dream, Address at Ebenezer Baptist Church (July 4, 1965), https://kinginstitute.stanford.edu/king-papers/publications/knock-midnight-inspiration-great-sermons-reverend-martin-luther-king-jr-4 [https://perma.cc/6LR-7AHP]. ↩︎
  43. Id. ↩︎