Advancing and Protecting the Deferred Action for Childhood Arrivals Program (p

Advancing and Protecting the Deferred Action for Childhood Arrivals Program

Department of Homeland Security et al. v. Regents of the University of California et al.

Jessa Davidson

The George Washington University (Class of 2023)

Major: International Affairs

Spring 2022

Abstract

The current status of the Deferred Action for Childhood Arrivals (DACA) program, the

untenable position in which it leaves its recipients, and appropriate remedies are discussed in this

paper. The DACA program is based on an executive order, which makes it relatively easy to

change by subsequent U.S. administrations, and leaves the livelihoods of the roughly 800,000

DACA recipients in constant peril. The Supreme Court Case Department of Homeland Security

et al. v. Regents of the University of California et al. illustrated this vulnerability. The Supreme

Court held that the previous administration's effort to terminate DACA was invalid solely

because they did not comply with procedural requirements. The legality of DACA was further

challenged in State of Texas, et al., v. United States of America, et al. (2021). This case resulted

in an injunction against DACA, and the program currently remains on hold. Therefore, DACA

recipients' futures remain uncertain, as do the futures of 1.3 million other people who rely on,

and benefit from, the DACA recipients. Required actions to address this issue are described,

starting with reforming DACA and turning it into federal law to protect young immigrants,

known as Dreamers. The "American Dream and Promise Act of 2021" must also be approved by

the Senate. This bill proposes a pathway to citizenship, an aspect that DACA lacks. These two

actions combined will fulfill a moral and political obligation to Dreamers, who will significantly

benefit the U.S. economy and help ensure the vibrancy of the American workforce.

I. Introduction

In 2012, President Barack Obama issued an Executive Order establishing the Deferred

Action for Childhood Arrivals (DACA) program. Those who meet the qualifications, outlined

further in this paper, can request a delay of deportation for two years with unlimited renewals.1

DACA protects nearly 800,000 people from deportation and allows them the opportunity to live

full lives within the U.S.2

Prior to DACA, immigrants who came to this country illegally at a young age had no path to

legal residency in the U.S. These children grew up in the United States, went to school in the

United States, worked in the United States, and served in the United States’ military but faced

the risk of being deported to a foreign country they had no ties to. DACA gave these children a

chance to live in the United States legally.

Despite the protections that DACA offers—or perhaps because of these protections—the

DACA program is in a very vulnerable position. Since the policy is contained in an executive

order, it can be repealed just as easily as it was created. This vulnerability was prominently

displayed in the Supreme Court case of Department of Homeland Security et al. v. Regents of the

University of California et al. Here, DACA’s termination was prevented only because the

government official who was given the task of ending the program used the wrong procedure.

DACA should therefore become federal law. Otherwise, the 800,000 people directly affected by

the program will remain at the mercy of politics. It is unjust and unreasonable to allow the lives

of people, who are for all intents and purposes American, to be chess pieces of partisan politics.

1 “What Should Be Done about DACA?” Anti-Defamation League, accessed March 2021, https://www.adl.org/education/educator-resources/lesson-plans/what-should-be-done-about-daca. 2 “What Is DACA and Who Are the DREAMers?,” Anti-Defamation League, accessed March 2021, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-ar e-the-dreamers.

II. DACA: What It Is, How It Was Formed and Why

In 2001, the Development, Relief and Education for Alien Minors (DREAM) Act was

introduced in Congress to protect immigrants from deportation who entered the U.S. as children.

The Act would have allowed all undocumented high school graduates or GED recipients an

opportunity to gain citizenship.3 Since 2001, 11 versions of the Dream Act have been introduced

in Congress but none have become law. 4 President Obama saw the merit in the DREAM Act.5

The immigrants who qualify for citizenship under the DREAM Act (known as Dreamers) are

American in every way: they grew up here, call the U.S. home, and know no other country.

Given Congress’s inability to pass the law, President Obama decided to take matters into his

own hands. He announced that the Department of Homeland Security (DHS) would create a

program to delay the deportation of young immigrants who were brought to the U.S. by their

parents and do not present a risk to the country in any way.

To support the declaration. President Obama further stated:

[I]t makes no sense to expel talented young people, who, for all intents and purposes, are Americans -- they’ve been raised as Americans; understand themselves to be part of this country -- to expel these young people who want to staff our labs, or start new businesses, or defend our country simply because of the actions of their parents -- or because of the inaction of politicians. 6

DHS created an intensive requirement list for DACA applicants to ensure the safety of

national security and slightly appease the political right who were against the program. The

requirements were comprehensive:

3 “The Dream Act: An Overview,” American Immigration Council, March 16, 2021, https://www.americanimmigrationcouncil.org/research/dream-act-overview. 4 Ibid., 5 Lori Robertson, “The Facts on DACA,” FactCheck.org, August 10, 2018, https://www.factcheck.org/2018/01/the-facts-on-daca/. 6 Barack Obama, “Remarks by the President on Immigration,” National Archives and Records Administration (National Archives and Records Administration, June 15, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigratio

n.

● The applicant is at least 15 years old upon applying but under the age of 31 as of June 15,

2012.

● The applicant must have been under the age of 16 when they entered the U.S. and lived in

the U.S. continuously since June 15, 2007.

● The applicant must have been in the U.S. on June 15, 2012, currently be in school or have

graduated, or have been honorably discharged from the military.

● The applicant cannot have been convicted of a felony, substantial misdemeanor, or three or

more misdemeanors.7

The application to earn DACA status is seven pages long and carries a 495-dollar filing fee.

After the application is completed, the applicant is screened using biometric data, and the U.S.

Citizen and Immigration Services completes a background check.8 In other words, the process is

long, thorough, and cumbersome.

If an applicant is successful, the deferred action lasts for two years with unlimited

opportunities for renewal contingent upon the DACA applicant, often also referred to as a

Dreamer, not being convicted of a felony, significant misdemeanor, or three or more

misdemeanors.9 With DACA status, immigrants can live the life of a relatively average American

citizen: they can obtain work permits and health insurance, attend school, go to college and get a

driver’s license.10 Almost 800,000 individuals have directly benefited from this program and

have been able to build lives and livelihoods in the U.S.

7 Lori Robertson, “The Facts on DACA,” FactCheck.org, August 10, 2018, https://www.factcheck.org/2018/01/the-facts-on-daca/. 8 Ibid., 9 “Renew Your DACA,” USCIS, January 12, 2021, https://www.uscis.gov/humanitarian/renew-your-daca. 10 Caitlin Dickerson, “What Is DACA? And How Did It End Up in the Supreme Court?” The New York Times (The New York Times, June 18, 2020), https://www.nytimes.com/article/what-is-daca.html.

The DACA program, however, is not a path to citizenship. While the recipients have deferred

the possibility of deportation and are considered “lawfully present” in terms of receiving Social

Security and health care, DACA does not grant lawful status to the Dreamers.11 DACA recipients

are not U.S. citizens.

III. Actions of the Trump Administration

Donald Trump focused much of his first Presidential campaign on illegal immigration. Once

elected, he spent a significant portion of his time trying to reduce the number of immigrants on

U.S. soil.12 Trump was determined to end the DACA program, an initiative that was widely

supported by his mostly conservative Republican voting base.

Trump was very open and outspoken about his dislike of immigrants. For instance, during an

Oval Office meeting in 2018 he asked several Cabinet members “Why would we want all these

people from shithole countries?”13

Not surprisingly, the Trump administration placed an expiration date on DACA in 2017.

Elaine Duke, the Acting Director of Homeland Security, was told to “wind down [the program]

in six months” to avoid a public outcry. 14 DACA permits would no longer be renewable and

would eventually expire.

Trump’s proposal to end DACA was unjust. The Dreamers had done nothing wrong, yet they

were threatened with an abrupt termination of their right to live in the United States. Trump had

11 Lori Robertson, “The Facts on DACA,” FactCheck.org, August 10, 2018, https://www.factcheck.org/2018/01/the-facts-on-daca/. 12 Michael, “Trump Says Administration Will Try Again to End 'Dreamers' Program,” The New York Times (The New York Times, June 19, 2020), https://www.nytimes.com/2020/06/19/us/politics/trump-daca.html. 13 Michael, “Trump Says Administration Will Try Again to End 'Dreamers' Program,” The New York Times (The New York Times, June 19, 2020), https://www.nytimes.com/2020/06/19/us/politics/trump-daca.html. 14 Vanessa Romo, Martina Stewart, and Brian Naylor, “Trump Ends DACA, Calls On Congress To Act,” NPR (NPR, September 5, 2017), https://www.npr.org/2017/09/05/546423550/trump-signals-end-to-daca-calls-on-congress-to-act.)

PAGE 13

suddenly put the futures of some 800,000 Dreamers, as well as their families, loved ones, and

industries that rely on the young immigrants’ contribution, at risk.

The outcry was immediate. Protests, demonstrations, and a furious public response were

only the beginning. Then came the lawsuits.

IV. Department of Homeland Security et al. v. Regents of the University of California

et al.

In response to Trump’s decision to terminate DACA, a group of plaintiffs, including

numerous individual DACA recipients, several states, the Regents of the University of

California, and the National Association for the Advancement of Colored People (NAACP), filed

suit challenging the decision. The legality of the DACA program was not at issue; instead, the

case focused on how the DACA program was terminated. In a decision hailed by liberals and

denounced by conservatives, Chief Justice John Roberts wrote the opinion of the Court which

held, in a five to four decision, that the termination of DACA was not valid.

A. Facts of the Case

In November 2014, during President Obama’s second term in office, DHS announced that it

would expand DACA by taking away the age cap, changing the arrival date from 2007 to 2010,

and expanding the deferred action to three years instead of two. DHS also planned to implement

Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).15 This

decision was an effort to enlarge the DACA program to respond to the needs of society and

continue supporting the young immigrants who were brought to the U.S. without intent to violate

the law.

Before this plan could be implemented, Texas and 26 other states filed suit in the Federal

District Court for the Southern District of Texas and asserted that the proposed DAPA program

15 IV. Department of Homeland Security et al. v. Regents of the University of California et al., 3.

PAGE 14

and the DACA expansion violated the Administrative Procedure Act (APA), the Immigration and

Nationality Act (INA), and the duty of the Executive under the Take Care Clause in Article II of

the U.S. Constitution.16 Since the plaintiff states were likely to succeed on at least one of their

many accusations, the Southern District Court of Texas issued a nationwide preliminary

injunction barring implementation and operation of both the DAPA program and the DACA

expansion.17

The move to do away with DACA and DAPA accelerated when Trump came into office. In

2017, the DHS reversed the DAPA Memorandum.18 Immediately, Attorney General Jefferson B.

Sessions III advised Secretary of Homeland Security Elaine C. Duke to terminate the DACA

program. The very next day, Secretary Duke issued a memorandum stating that DHS would only

take renewal applications for the next six months but all other recipients’ status would expire

without an opportunity for renewal, thus ending the DACA program.19

Multiple groups of plaintiffs challenged Secretary Duke’s recission announcement including

individual DACA recipients, States, the regents of the University of California, and the NAACP.

The plaintiffs challenged Duke’s decision in the Federal District Court for the Northern District

of California, the Eastern District of New York, and the District of Columbia. The plaintiffs’

claims were that the recession was arbitrary and capricious, violated the APA, and infringed

upon the equal protection guarantee of the Fifth Amendment’s Due Process Clause.20 The three

District Courts all found in favor of the plaintiffs but for different reasons.21 The Northern

District of California and the Eastern District of New York held that the recession violated the

16 Ibid., 4. 17 Ibid., 18 Ibid., 5. 19 Ibid., 6. 20 IV. Department of Homeland Security et al. v. Regents of the University of California et al., 6. 21 Ibid.,

equal protection guarantee of the Fifth Amendment’s Due Process Clause. These two District

Courts then entered preliminary injunctions because the plaintiffs were likely to succeed in their

claims that the recession was also arbitrary and capricious.22 The D.C. District Court, with the

NAACP as the plaintiff, followed a different line of reasoning and held that Duke’s

memorandum was “insufficient to explain the change in the agency’s view of DACA’s

lawfulness.”23 The D.C. District Court therefore allowed the DHS an additional 90 days to

provide a better explanation for its decision.

Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s request with a

memorandum. However, instead of creating a new memorandum explaining the decision,

Nielsen simply elaborated on her interpretation of Duke’s original memorandum.24 The D.C.

District Court stated that Nielsen’s memorandum “failed to elaborate meaningfully on the

agency’s illegality rationale, [and] still did not provide an adequate explanation for the

September 2017 rescission.”25 The Government appealed the three District Courts’ decisions and

filed three petitions for certiorari, which the Supreme Court granted following the Ninth Circuit’s

affirmation of the injunction.26

B. Issue

This case came down to three key issues: If the Administrative Procedure Act claims are

reviewable by the Court, if the rescission was arbitrary and capricious in violation of the APA,

and if the decision violated the equal protection guarantee of the Fifth Amendment’s Due Process

Clause. In other words, the issue is whether or not the termination of DACA was valid.

C. Holding

22 Ibid., 7. 23 Ibid., 24 Ibid., 25 Ibid., 8. 26 IV. Department of Homeland Security et al. v. Regents of the University of California et al., 8.

PAGE 16

The Court held that (1) the APA claims were reviewable by the Supreme Court, (2) that the

rescission was arbitrary and capricious, but (3) the decision was not a violation of the equal

protection guarantee of the Fifth Amendment’s Due Process Clause. Therefore, the termination

of DACA was not valid.

D. Rationale

Reviewability by the Court. The APA outlines the procedures that the federal agencies are

required to follow to promote accountability and allow their actions to be reviewed by federal

courts. Non-enforcement policies are unreviewable by the APA.27 The Court found that DACA is

reviewable under the APA because DACA is more than a non-enforcement policy. DACA does

more than prevent deportation; DACA is a process for the U.S. Citizen and Immigration Services

(USCIS) to confer affirmative immigration relief to individuals who meet a specific set of

criteria.28 Additionally, DACA provides benefits to the eligible immigrants which further

confirms its status as more than a non-enforcement policy. 29 The APA claims are therefore

reviewable by the Court.

Arbitrary and Capricious. The recession can be considered arbitrary and capricious because

“Acting Secretary Duke ‘failed to consider… important aspect[s] of the problem’ before her.”30

The first failure was the lack of consideration for the forbearance of removal (deferred action)

aspect of DACA. The DACA Memorandum has two key parts: forbearance of removal for

two-years and the associated benefits, such as work authorization and Social Security. The Duke

memorandum focused solely on the associated benefits of DACA and declared such benefits

illegal. Acting Secretary Duke provided no justification for terminating the forbearance policy.

31

27 Ibid., 11. 28 Ibid,.12. 29 V. Department of Homeland Security et al. v. Regents of the University of California et al., 11. 30 Ibid.,18. 31 Ibid., 21.

Duke further failed to consider the option of the termination of benefits while retaining

forbearance. 32 The second failure was that Acting Secretary Duke did not address “whether there

was ‘legitimate reliance’ on the DACA Memorandum.”33 The Court points to the precedent of

Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) which affirmed that agencies

must “be cognizant that longstanding policies may have ‘endangered serious reliance interests

that must be taken into account.’”34 The failure to consider and accommodate reliance interests

was arbitrary and capricious in violation of the APA.35

It is important to note that when the D.C. District Court granted the DHS an opportunity to

provide an “amplified articulation” of the memorandum explaining the termination of DACA,

the government had two options: clarify the reasons already provided without providing new

explanations or create a completely new memorandum.36 Secretary Nielsen chose the former.

However, Secretary Nielsen offered three explanations that were not present in the initial Duke

Memorandum.37 Given that the new explanations for recession were post hoc rationalizations,

they are impermissible rationalizations and cannot be used in the decision of the Court.38

Equal Protection. The majority opinion found that the allegations that DACA violated the

equal protection guarantee of the Fifth Amendment’s Due Process Clause were unsubstantiated.39

All Justices except Justice Sonia Sotomayor concurred with the opinion of the court on this

section. Justice Sotomayor noted that the racist language toward immigrants, refugees, and other

minority groups used by Donald Trump throughout his presidential campaign and presidency

32 Ibid., 23. 33 Ibid., 34 Ibid., 35 Ibid., 36 IV. Department of Homeland Security et al. v. Regents of the University of California et al., Sotomayor, 14. 37 Ibid., 38 Ibid., 15. 39 Ibid., 27.

demonstrated that the termination decision was clouded by personal discrimination and bias.40

The other eight Justices found the issue to be completely procedural in nature without ample

evidence to indicate a violation of the equal protection guarantee of the Fifth Amendment’s Due

Process Clause.

E. Impact

The recission memorandum was sent back to DHS due to the agency’s inability to comply

with procedural requirements, and the DHS was invited to reconsider the problem and try again

with proper protocol. The Supreme Court’s decision was not about the validity of DACA.

Instead, the Court focused solely on whether the government had taken the proper steps under

the APA to terminate the program. Presumably, a government that followed the correct

procedural steps could end the program.

V. Current Status of DACA

In the following section, the significant and relevant changes that have occurred since the

Supreme Court case are described. These changes include a new Presidential Administration, a

case at the U.S. District Court for the Southern District of Texas which ruled DACA “illegal,” 41

and the DREAM Act in Congress.

A. The Biden Administration

President Donald Trump lost the 2020 presidential election, and he was replaced by current

President Joseph Biden. Due to the change in administration, the DHS under the Trump

administration did not have an opportunity to remedy the procedural issue and reattempt to

41“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’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv.

40 Ibid., 2

terminate DACA. When Joe Biden was inaugurated on January 20th , 2021, he released a

statement promising to preserve and fortify DACA.42 Although the message of this statement

was promising, the effect was minimal as seen through the Texas’s District Court decision.

B. State of Texas, et al., v. United States of America, et al.

While the U.S. Supreme Court protected DACA from recession in Department of Homeland

Security et al. v. Regents of the University of California et al., the Court did not decide if DACA

was legal in the first place; that was not an issue in dispute in the case. The U.S. District Court

for the Southern District of Texas took on the issue of legality of the DACA policy. On July 16,

2021, the Southern District of Texas declared DACA illegal and vacated the DHS memorandum

that created DACA in 2012.43 The District Court issued a permanent injunction that prohibits the

U.S. agencies, departments, employees, etc., from “administering the DACA program and from

reimplementing DACA without compliance with the APA.”44 The District Court held that the

Obama administration did not follow proper protocol when creating the program and failed to

publish the rule in the Federal Register and allow for public comments.45 The Court therefore

42 Joseph R Biden, “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),” The White House (The United States Government, January 20, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortif ying-deferred-action-for-childhood-arrivals-daca/. 43 “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’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv. 44 Andrew S Hanen, “Order of Permanent Injunction,” USCIS, July 16, 2021, https://www.uscis.gov/sites/default/files/document/forms/i-9-paper-version.pdf. 45 Zaidee Stavely, “Biden Administration Takes Steps to Protect DACA as Universities Call for Path to Citizenship,” EdSource (EdSource, September 29, 2021), https://edsource.org/2021/biden-administration-takes-steps-to-protect-daca-advocates-universitie s-call-for-path-to-citizenship/661628.

remanded the memorandum to DHS “for further consideration.”46 To remedy the procedural

issue, DHS proceeded to publish DACA in the Federal Register and allow for comments until

November 29, 2021.47 Homeland Security has also appealed the decision of the District Court.48

As long as the Texas Court order remains in effect, the USCIS is permitted to accept initial

and renewal DACA requests, but USCIS cannot grant initial DACA requests on or after July 16,

2021.49 That is, current DACA recipients and DACA renewals will function as normal, but a

DACA request by an individual applying for the first time is on hold while the Texas court order

is in effect. The Biden administration filed a notice in the Fifth circuit Court of Appeals in

September of 2021, and this appeal process is ongoing.50 Currently, the USCIS still cannot

approve initial DACA requests, leaving many young immigrants in a state of uncertainty.

C. The American Dream and Promise Act 2021

46 “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’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv. 47 “Federal Register: Deferred Action for Childhood Arrivals,” Federal Register, September 28, 2021, https://www.federalregister.gov/documents/2021/09/28/2021-20898/deferred-action-for-childhoo d-arrivals. 48 Zaidee Stavely, “Biden Administration Takes Steps to Protect DACA as Universities Call for Path to Citizenship,” EdSource (EdSource, September 29, 2021), https://edsource.org/2021/biden-administration-takes-steps-to-protect-daca-advocates-universitie s-call-for-path-to-citizenship/661628. 49 “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’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv. 50 Joe Walsh, “Biden Vows to Appeal Texas Judge's Daca Ban - Here's What Happens Next,” Forbes (Forbes Magazine, July 17, 2021), https://www.forbes.com/sites/joewalsh/2021/07/17/biden-vows-to-appeal-texas-judges-daca-ban--heres-what-happens-next/?sh=23a0b50f1021.

The Biden Administration is also reattempting to pass a version of the DREAM Act. The first

version of the DREAM Act was proposed in 2001, and as previously mentioned, never became

law. The most recent DREAM Act, the American Dream and Promise Act of 2021, which passed

the House of Representatives but has not yet been voted on in the Senate, creates a pathway to

citizenship for young immigrants.51 This DREAM Act would allow undocumented immigrants,

who were brought to the U.S. as children, a pathway to citizenship and increase the number of

the young immigrants eligible for legal protection.52 The DREAM Act requires that young

immigrants must:

● Be 18 or younger;

● Have continuously resided in the U.S. since, or before, January 1, 2021;

● Not have committed any crime or misdemeanor;

● Demonstrate that they have earned a high school diploma or an equivalent;

● Pass a government background security check, submit biometric and biographic data;

● Pay the application fee.53

The main differences between the DREAM Act and the DACA program are that the

DREAM Act creates a path to citizenship and has a more recent arrival date, as opposed to

DACA’s 2007 cut-off. DACA recipients would also be eligible to obtain citizenship through the

51 Jonathan Petts, “All about the Dream Act 2021,” All about the DREAM Act 2021 | ImmigrationHelp.org, April 30, 2021, https://www.immigrationhelp.org/learning-center/all-about-the-dream-act-2021. 52 “Bill Summary: American Dream and Promise Act of 2021,” National Immigration Forum, March 12, 2021, https://immigrationforum.org/article/bill-summary-american-dream-and-promise-act-of-2021/. 53 “Bill Summary: American Dream and Promise Act of 2021,” National Immigration Forum, March 12, 2021, https://immigrationforum.org/article/bill-summary-american-dream-and-promise-act-of-2021/.

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DREAM Act.54 President Biden has called on Congress to pass the American Dream and

Promise Act and “ensure a permanent solution by granting a path to citizenship for Dreamers

that will provide the certainty and stability that these young people need and deserve.”55 The

Biden Administration is working to protect Dreamers, but until the DREAM Act is passed by the

Senate, DACA recipients have no pathway to citizenship, and the USCIS cannot approve new

DACA applications. Given the current state of limbo, DACA needs to be reformed, turned into a

federal law, and the DREAM Act must also be successfully turned into a federal law.

VI. DACA Reform

The first step in DACA reform is turning the executive order into a federal law which is

significantly more difficult to overturn than an executive order. Currently, the Dreamers’ status is

at risk every four years as they wait to see if the new Presidential Administration will protect or

deport them. Department of Homeland Security et al. v. Regents of the University of California et

al. showed very clearly that DACA can be overturned using the correct procedure.

The Obama administration attempted to extend the DACA program in 2014 and to remove

the age cap and extend the cutoff date of arrival into the U.S. from 2007 to 2010. While this

extension did not occur, DACA needs to be extended to include young immigrants brought into

the U.S. after 2007. Given that applicants must be at least 15 years old and brought into the U.S.

on or before 2007, 2022 will be the last year of DACA recipients. There are thousands of young

immigrants brought into the U.S. by their parents after 2007 who do not have access to a

54 “House Passes the American Dream and Promise Act,” American Council on Education, March 22, 2021, https://www.acenet.edu/News-Room/Pages/House-Passes-American-Dream-Promise-Act.aspx. 55 Joseph Biden, “Statement by President Joe Biden on DACA and Legislation for Dreamers,” The White House (The United States Government, July 17, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/17/statement-by-preside nt-joe-biden-on-daca-and-legislation-for-dreamers/.

deferred action program. These children are Dreamers too, and they need and deserve legal

protection.

In addition to expanding the cutoff date of DACA and turning it into a federal law, the

DREAM Act must be passed in Congress in order to provide a pathway to citizenship. At this

point, there is no way for a DACA recipient to become a U.S. citizen. The DREAM Act would

remedy this discrepancy and create a much-needed bridge from legal residency under DACA to

citizenship. Additionally, The Act is essential to protecting young immigrants in the U.S. who

know no other home than the U.S.

The U.S. has a moral and political obligation to Dreamers. Dreamers currently provide

significant benefits to the U.S. economy and enacting the above changes will help ensure the

vibrancy of vital aspects of the American workforce. Over 1.3 million people within the U.S. live

with a DACA recipient and approximately 300,000 U.S.-born children have at least one parent

that is a DACA recipient.56 Thus, over one million U.S. citizens who rely on a DACA recipient

for housing, rent, or caregiving would be negatively affected by the revocation of the DACA

program. Additionally, a large majority of the American public supports granting legal status to

immigrants brought illegally to the U.S. as children. As of 2018, 74 percent of the public

supported granting these young immigrants’ legal status, including 50 percent of Republicans

and 92 percent of Democrats.57 Federal law should reflect the public’s support of and reliance on

the young immigrants.

56 Nicole Prchal Svajlenka and Trinh Q. Truong, “The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition,” Center for American Progress, November 24, 2021, https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipi ents-fall-2021-edition/. 57 Alec Tyson, “74% Favor Legal Status for Those Brought to US Illegally as Children,” Pew Research Center (Pew Research Center, September 8, 2020), https://www.pewresearch.org/fact-tank/2018/01/19/public-backs-legal-status-for-immigrants-bro ught-to-u-s-illegally-as-children-but-not-a-bigger-border-wall/.

The reliance on the DACA program is more than personal: the Dreamers also significantly

benefit the U.S. economy. Over three fourths of DACA recipients –343,000 people– are

considered essential workers, including health care providers, teachers, and food supply chain

workers.58 The Center for American Progress affirmed that DACA recipients will add 460.3

billion dollars to the U.S. gross domestic product (GDP) within the next decade. If the DACA

program is eliminated this substantial economic growth will be lost. California’s GDP, for

instance, would be reduced by 11.6 billion dollars if the DACA program is terminated. 59 These

young immigrants have lived in the U.S. since they were children, with the average Dreamer

having arrived at six years old, and were educated by the U.S. educational system with American

values and ambition. Deporting the Dreamers would be a waste of billions of dollars’ worth of

human capital that has already been invested into the immigrants through years of education and

naturalization.60 Moreover, the DREAM Act, if passed through the Senate and made into a

federal law, will contribute another 22.7 billion dollars to the U.S. GDP every year – or 400

billion dollars within the next decade.61 The Dreamers, now on average 26 years old, are the next

generation of entrepreneurs, scientists, health care workers, and are a necessary and vital

component of the U.S. economy. American citizens rely on the young immigrants on a personal

and economic level; removing the program would therefore be a grave mistake for the American

people and the U.S. GDP.

VII. Conclusion

58 Nicole Prchal Svajlenka and Trinh Q. Truong, “The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition,” Center for American Progress, November 24, 2021, https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipi ents-fall-2021-edition/. 59 “Daca & The Dream Act - Pros & Cons,” Britannica, July 19, 2021, https://www.procon.org/headlines/are-daca-and-the-dream-act-good-for-america/. 60 “Daca & The Dream Act - Pros & Cons,” Britannica, July 19, 2021, https://www.procon.org/headlines/are-daca-and-the-dream-act-good-for-america/. 61 Ibid.,

Department of Homeland Security et al. v. Regents of the University of California et al.

demonstrated the fragility of the Deferred Action for Childhood Arrivals program and the danger

that the Dreamers face every four years. State of Texas, et al., v. United States of America, et al.

further highlighted DACA’s vulnerability. Without immediate federal action to expand the

DACA program, turn it into federal law, and pass the DREAM Act through Congress, the futures

of over 800,000 young immigrants and the additional 1.3 million people who rely on and benefit

from Dreamers’ contributions, are continually imperiled. It is imperative for the Biden

Administration to act swiftly and decisively to rectify this situation.

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