Amid Court Challenges, Here’s What Will Happen If DACA Ends
Amid Court Challenges, Here’s What Will Happen If DACA Ends
A nationwide injunction could spell the end of the DACA program that protects young immigrants.
Since its creation in 2012, the Deferred Action for Childhood Arrivals (DACA) program has protected more than 820,000 undocumented immigrants from deportation—all of whom came to the United States at a young age and have lived here for more than a decade. But this progress is now in serious jeopardy.
Last September, the Trump administration rescinded DACA, announcing an arbitrary deadline—October 5, 2017—by which recipients with expirations on or before March 5, 2018, could apply for renewal. But myriad court cases have left the actual state of play surrounding the program anything but clear. Since January, multiple federal courts have ruled against the administration’s decision to end the program and have allowed DACA recipients to once again submit applications to renew their protections, regardless of expiration date. The first of these rulings came from a federal judge in California last January; a second ruling came from New York the following month, where a judge issued a similar injunction. And just last week, a federal judge in Washington, D.C., ordered that the full DACA program be reinstated, including for first-time applicants. That ruling is on hold until August 23, however, giving the Trump administration an opportunity to appeal the decision.
The threat against DACA leaves 700,000 lives in limbo
The main threat to DACA comes from a lawsuit that Texas Attorney General Ken Paxton filed on behalf of eight states and two Republican governors to challenge the constitutionality of DACA. A preliminary injunction hearing in the case was held August 8. On the bench is Andrew Hanen, the notoriously anti-immigrant U.S. district judge who blocked the 2014 expansion of DACA and the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a separate initiative adopted during the Obama administration. If Judge Hanen issues a nationwide injunction ordering U.S. Citizenship and Immigration Services (USCIS) to stop adjudicating further DACA renewal applications, that would be in direct conflict with the previously issued injunctions that require USCIS to continue adjudicating renewal applications. This would throw the situation into chaos, triggering a battle that could end up at the Supreme Court. At a time when Brett Kavanaugh’s pending nomination could dramatically shift the court’s balance, the plight of a DACA case before the Supreme Court could imperil the program.
An analysis from the Center for American Progress estimates that as many as 16,200 recipients have already lost their DACA protections because they have not applied for renewal. This number includes 1,500 individuals whose DACA was due to expire between March 5, 2018, and July 31, 2018, as well as up to 14,700 individuals whose DACA expired between September 5, 2017, and March 5, 2018. And if future DACA renewals are halted—as the Trump administration and the states led by Texas Attorney General Paxton are hoping—many more individuals will quickly begin to lose DACA.
With so much at stake, immigrant rights organizations are recommending that anyone whose DACA expires before 2020 renew as soon as possible. A substantial number of DACA recipients have applied for renewal since the January injunction—158,100, or nearly all the recipients whose protections were slated to expire from March 2018 through July 2018.
But what would the end of DACA mean for the 704,000 Dreamers currently enrolled? DACA provides a two-year period of work authorization and protection from deportation. A prohibition on renewal applications would therefore mean that DACA recipients lose these protections on a rolling basis over the next two years.
Prior to the Trump administration’s rescission of DACA, USCIS advised recipients to file renewal applications 120 days to 150 days before expiration. Under this guidance, it would make sense for the renewal rate for applications of individuals with November 2018 and December 2018 expirations to reflect the high renewal rate of applications expiring March 2018 through July 2018. But for reasons that are unclear, the rate of renewal has dropped significantly in the past few months. CAP estimates that the renewal rate is 38 percent for those with November expirations and only 22 percent for individuals with December expirations. Furthermore, a pending application does not bestow any protection from deportation. CAP estimates that as of July 31, 2018, 64,300 Dreamers whose DACA expires from August 2018 to December 2018 had not applied for renewal.*
The number of expirations climbs even higher in 2019 and 2020. Two-thirds of Dreamers—466,700—hold DACA that expires at some point in 2019. CAP estimates that only 3 percent of these individuals—14,000—had applied for renewal as of July 31. If USCIS were to stop accepting renewal applications, approximately 452,700 DACA recipients would lose protection in the next calendar year, not considering any filed in August. An additional 156,250 DACA recipients would see their protections disappear through July 2020.**
Assuming that all currently pending renewal applications are approved by USCIS, 1,240 DACA recipients would lose protection every day in 2019, and 732 would lose protection every day through July 2020.
The consequences of losing DACA
The end of DACA would have immense consequences for recipients—and the country more broadly. As their DACA expires, individuals would lose both protection from deportation and their work authorization. The loss of the latter would likely have a substantial impact on the U.S. economy. Eighty-nine percent of respondents to a 2018 survey of DACA recipients were employed in workplaces across the country.
DACA also allows recipients to apply for driver’s licenses in all states, meaning that as individuals’ DACA expires, so, too, might their license. While some states and Washington, D.C., permit all undocumented immigrants—even those without DACA—to apply for driver’s licenses, 38 do not.
Losing DACA would make higher education far less accessible as well. In several states, DACA recipients can pay in-state tuition rates, but this is not the case for the wider community of undocumented students. The end of DACA would also have ramifications for students in states that permit DACA recipients to enroll in public universities but ban undocumented students from doing so.
It’s time to protect Dreamers once and for all. Federal courts should recognize that DACA implementation was a lawful exercise of executive authority and reject the Trump administration’s shifting explanations for ending the program, as well as its “possible collusion” with Texas Attorney General Paxton regarding the ongoing litigation before Judge Hanen. Opponents of DACA, including the administration, should stop trying to disrupt the lives of more than 700,000 young people who continue to make positive contributions to U.S. communities and the economy. And Congress needs to pass the Dream Act without once more engaging in political games that imperil the lives that DACA recipients and their families have built in the United States.
Nicole Prchal Svajlenka is a senior policy analyst of Immigration Policy at the Center for American Progress.
* Analysis in this column reflects multiple data sets published by USCIS on DACA through July 31, 2018, and thus does not include DACA renewals submitted in August. On average, USCIS accepted 22,300 renewal applications per month from February 2018 through July 2018.
** The losses could be much higher depending on how a potential injunction treats pending applications. It could either block USCIS from adjudicating any applications received after issuance of the injunction but permit USCIS to adjudicate those that are now pending, or it could prohibit USCIS from adjudicating even applications that are already in the queue. If the latter were the case, approximately 33,600 additional DACA recipients with pending renewals would be affected—including at least 2,400 individuals with expired DACA and an additional 5,900 Dreamers still awaiting word on their long-pending initial DACA applications.
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Nicole Prchal Svajlenka
Director of Research, Rights and Justice