DACA Has Not Been Saved—and It May Be in Its Last Days

The program protecting Dreamers from deportation has achieved a string of victories in the courts. But legal experts—and DACA recipients—worry that not much has changed.
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Demonstrators march in response to the Trump administration's announcement that it would end the Deferred Action for Childhood Arrivals program on September 5th, 2017, in Washington, D.C.

Demonstrators march in response to the Trump administration's announcement that it would end the Deferred Action for Childhood Arrivals program on September 5th, 2017, in Washington, D.C.

If you read headlines in the last month, you might think that the Deferred Action for Childhood Arrivals program, known as DACA, was in good shape. "Dreamers Win Round in Legal Battle to Keep DACA," the New York Times announced on November 8th, the day a federal appeals court upheld a California judge's injunction forbidding the Trump administration from rescinding the program. "Today's decision is a tremendous victory," Xavier Becerra, California's attorney general, said in a statement.

For many Dreamers (as DACA recipients are commonly called), however, the month's news, like other supposed wins for DACA, inspired little optimism.

"I see a lot of people call [these court decision] victories," says Indira Marquez Robles, a DACA recipient attending university in Atlanta. "In a way, I do see it as a victory. But with these victories, there's no real change. I always feel like it's more like just holding on."

Legal experts tend to agree with Marquez Robles. Though DACA has scored a string of legal successes since the Trump administration attempted to end the program, these have done little to protect the program.

For the past 14 months, as her DACA status has remained uncertain, Marquez Robles and her mother have taken turns sending each other news and updates from the courts. Their near-daily check-ins about the program began in September of 2017, when the Trump administration announced its decision to end the Obama-era program that protects certain undocumented immigrants who arrived in the country as children from deportation.

That announcement threw DACA recipients like Marquez Robles into a state of deep uncertainty. Besides the sudden inability to renew their DACA status, Dreamers had to contend with a new threat: The government had their names on a list of all DACA applicants. What if the immigrant-hostile Trump administration used that list to locate and deport young immigrants and their families?

A slew of subsequent court cases assuaged these immediate worries, at least temporarily. Three judges, in three separate cases in California, Washington, D.C., and New York, issued injunctions preventing the Trump administration from rescinding the program. Though the administration can still reject new applications, the injunctions mandate that the government continue to accept DACA renewals, as ending the program for existing recipients would be, according to the California judge, "arbitrary and capricious." (That judge's opinion, in Regents of the University of California v. Department of Homeland Security, was the one that was upheld by the Ninth Circuit earlier this month.) Marquez Robles renewed her status this year, as have thousands of other Dreamers since the California court first issued the injunction.

Another court case, this one in Maryland, dealt with the issue of the list—the government's collection of DACA-recipient names. Two different agencies come into play in the decision. The first, United States Citizenship and Immigration Services, is the agency that actually has the list. The Department of Homeland Security houses USCIS, as well as the primary agency tasked with immigration enforcement: Immigration and Customs Enforcement.

As of now, USCIS has not shared the list of names with ICE, and is barred from doing so by the federal court in Maryland. In the case, Casa de Maryland v. DHS, the court issued an injunction barring the federal government from sharing DACA-related information with immigration enforcement, except in limited scenarios—for instance, if a DACA recipient has already been served a notice to appear in court.

As a result of these court decisions, DACA recipients have gained back many of the protections that disappeared back in September of 2017. But those protections are not set in stone. There has been no final decision that determines DACA's status; all the aforementioned court decisions are still winding their way through an appeals process. Depending on how higher courts rule in the coming months, the injunctions protecting Dreamers could disappear for good.

But Marquez Robles says she's noticed that the public's attention toward the program's fate has steadily diminished since last year. Teachers and other people in her life used to check in on her, but now the issues facing DACA recipients seems to have slipped out of many peoples' minds.

"There was this whole surge of 'Defend DACA' when it first got canceled," Marquez Robles says. "Nowadays, some people still talk about it. But I have to rely on the people I've worked with in advocacy organizations, or [other DACA recipients]. We check up on each other."

Though DACA recipients and their advocates remain anxious about DACA's status, the program seems to have lost the public's attention. And the periodic headlines declaring new "victories" might create the illusion, for those less informed, that DACA is winning its fight.

In reality, DACA is on the ropes. Right now, the most immediate threats to the program come from a judge in Houston, Texas, and the Supreme Court.

In Texas, U.S. District Judge Andrew Hanen, one of the most notoriously anti-immigrant judges in the country—under President Barack Obama, Hanen struck down parts of DACA and prohibited a program that would have protected undocumented parents of U.S. citizens—is currently hearing Texas v. Nielsen, a case that could end DACA. Unlike the court cases in California and other states, Texas v. Nielsen does not consider whether or not the Trump administration has a right to end DACA, but instead considers whether or not DACA is constitutional in the first place. A coalition of states, led by Texas, sued the federal government, alleging that the program is illegal. Though Hanen surprised legal observers by declining to issue a preliminary injunction suspending DACA, he has given strong indications that he intends to rule DACA illegal. "If the nation truly wants a DACA program it is up to Congress to say so," Hanen said in August.

With the possibility of multiple competing court rulings in the country, it's likely that the nation's highest court will soon weigh in—and when it comes to ending DACA, the Trump administration has given indication that it likes its chances. As Mayra Joachin, a staff attorney with the National Immigration Law Center, explains, the Trump administration took the "rare and unusual" step of asking the Supreme Court to take up the Regents case in California before it even got to the Ninth Circuit.

Joachin says that there is a "high likelihood" that the Supreme Court will soon take up the Regents case. Though the timeline is difficult to predict, Joachin says that the Court will likely announce its decision to take up the case by early January, and then hear oral arguments sometime in March and April. Until then, the DACA program's status will likely remain the same, unless the Supreme Court cancels the lower court's injunction.

"Where do I think this is going to go? I don't have a crystal ball," says Shoba Wadhia, a law professor and director of the Center for Immigrants' Rights Clinic. "But I think one thing is clear: No court has found DACA to be unconstitutional, and multiple courts believe the government's justification for ending DACA was arbitrary and a mistake of law."

Wadhia co-authored a letter signed by over 100 law professors nationwide that argued DACA is perfectly constitutional. However, despite many legal scholars' belief in the program's legality, the fact that the Trump administration has asked the Supreme Court to take up the Regents case could indicate that they believe the Court—full with Trump's two recent conservative appointees—will rule in the administration's favor.

With so many court cases, the future of DACA is impossible to predict, but it's likely that the judicial process protecting the program will soon run out of steam, and the program will lose its last defense. The Supreme Court could rule against DACA in the Regents case, or could confirm Hanen's ruling if he eventually rules against the program. The Casa de Maryland case, which stops ICE from getting a list of DACA recipients, is still being appealed, so even that last protection could vanish.

For Joachin and others in the undocumented advocacy community, there is some hope that Congress will step in and save the program before it meets its end in the courts.

"It's difficult to predict what will actually pass within the new Congress, but statements from [likely Speaker of the House] Nancy Pelosi indicate that protecting DACA will be a priority for Democrats," Joachin says. The Congressional Progressive Caucus has also indicated that DACA is a priority.

As so much remains up in the air, Marquez Robles says she's begun to feel numb to the constantly changing legal situation. "It's been a normalized process, being in this limbo," she says. With her future, and the future of thousands of other Dreamers still in question, she says all she can do now is focus on her studies. "So much is uncertain and unclear, but I'm still in college," she says. "I don't want to disregard that privilege, and I want to keep studying because that's the dream."

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