During his first State of the Union address, President Donald Trump once more laid out his framework to provide a path to citizenship for Dreamers, young people who came to the United States as children and are now living, working, and studying in the country as well as serving in the U.S. armed forces. The proposal—which is heavily weighted down with extraneous provisions that have no relationship to the issue of protecting Dreamers—came after the Trump administration ended the Deferred Action for Childhood Arrivals (DACA) program in September 2017, and backed out of a series of bipartisan agreements to address the status of Dreamers in the preceding weeks.
Because of its draconian enforcement measures and historic cuts to legal immigration that would reshape the ethnic composition of immigrants entering the country, the president’s proposal has been largely dismissed as dead on arrival. Nevertheless, bipartisan groups in Congress continue to work on the issue, and momentum is growing among Democrats and Republicans to focus on a narrow solution that pairs meaningful protection for Dreamers with additional border security measures.
Over the next four weeks, an average of 122 DACA recipients will lose protection every day. Beginning on March 6, 2018, that figure could increase ten-fold. When Trump ended DACA on September 5, he tweeted that if Congress failed to pass legislation within six months he would “revisit this issue!” Assuming that promise—and his stated desire to protect Dreamers from deportation—are genuine, there are five things his administration could do right now to ameliorate the damage that already has been done and to prevent future harm, until a legislative fix is enacted.
1. Drop the appeal to the U.S. Supreme Court
Following a court order issued in January, U.S. Citizenship and Immigration Services (USCIS) is once more accepting DACA renewal requests. Although individuals who never before had DACA are still unable to apply for protection—including the tens of thousands of children who would have become eligible to apply for DACA upon turning 15 years of age after September 5, 2017—DACA recipients whose protections already have expired and those whose protections soon will expire are now able to request two-year extensions. The Trump administration, however, took the extraordinary step of bypassing the U.S. Court of Appeals for the 9th Circuit and instead seeking review of the court order directly in the U.S. Supreme Court. The Supreme Court agreed to the government’s request for an expedited briefing schedule on the question of whether to accept the case, and a decision would likely be issued in June if the court agrees to hear the matter.
It is difficult to reconcile the administration’s professed desire to protect Dreamers from deportation with its pledge to “vigorously defend” its decision to end DACA. The administration could demonstrate good faith in negotiations by dropping this appeal and backing away from its efforts to overturn the lower court ruling as quickly as possible.
2. Restore DACA
In addition to dropping its appeal to the Supreme Court, the administration still could restore the DACA program by having Secretary of the Department of Homeland Security (DHS) Kirstjen Nielsen reissue the memorandum that created the program in the first place. Although Attorney General Jeff Sessions—a long critic of the program—issued a conclusory one-page legal opinion in September finding the program unconstitutional, not a single court has agreed with that position and a federal court in January issued a preliminary injunction based on its conclusion that “DACA was and remains a lawful exercise of authority by DHS.”
Reinstating the program would also require the administration to defend its actions if Texas and a handful of other states pursue their threat from last June to challenge the program in court.
3. Expedite the adjudication of pending DACA renewal applications
Since September 5, 2017, nearly 19,000 young people are estimated to have already lost DACA protections. An unknown number of additional DACA recipients with pending renewal requests also may have lost their status during this time or may soon lose their status on or before March 5. And as of January 13, the approximately 1,200 people that will lose DACA every day beginning on March 6 are eligible to apply to keep or regain DACA. The administration should take immediate action to ensure that pending DACA renewal applications are adjudicated swiftly so that fewer people lose their DACA status.
Historically, USCIS has advised applicants to apply for renewal between 150 and 120 days prior to the expiration of their status. For individuals that already lost DACA protections as well as individuals whose protections will begin expiring in just 28 days on March 6 and were only recently permitted to apply for renewal, that processing time means exposure to the threat of detention and deportation, as well as the loss of a job, a driver’s license, and, in some instances, the ability to continue pursuing higher education.
During an oversight hearing before the Senate Committee on the Judiciary on January 16, Sen. Mazie Hirono (D-HI) asked Secretary Nielsen whether DHS will consider DACA renewal applications by certain applicants, including those that already have lost protections, on an expedited basis. Secretary Nielsen indicated that she was unaware of individuals that already had lost protection but that she would get back to the senator. Standing up an expedited review process for pending applications filed by individuals that already have lost their protections and those that will be losing their protections in the weeks ahead would be an important step to avoid unnecessary chaos for businesses and families alike.
4. Automatically extend protections for current DACA recipients for 180 days
In January, when USCIS published a notice in the Federal Register terminating temporary protected status (TPS) for approximately 200,000 Salvadoran nationals, effective September 9, 2019, it automatically extended for a period of 180 days the validity of all Employment Authorization Documents for Salvadoran TPS holders. Automatic extensions for TPS recipients are frequently used when the agency anticipates that it will be unable to process in a timely manner the volume of applications that will be coming in. This same process should also be applied for DACA recipients.
Historically, USCIS has had DACA renewal processing delays that have, on occasion, resulted in individuals experiencing gaps in coverage. But because the agency has long instructed DACA recipients to file for renewal well in advance of their expiration date these challenges have been more or less around the edges. Because the tens of thousands of DACA recipients set to lose protections in the months after March 6 were only recently given permission to file for renewal it is easy to anticipate that many or most of their applications will not be adjudicated before their current protections expire. If the administration is serious about protecting Dreamers while Congress hashes out legislation, USCIS should publish a notice in the Federal Register automatically extending protections, including work authorization, for DACA recipients whose protections are set to expire within the next 180 days. To encourage DACA recipients to file promptly for renewal, the agency can also make the extension contingent upon proof that a renewal application has been received by USCIS.
5. Issue guidance clarifying that Dreamers are not immigration enforcement priorities
In February 2017, U.S. Immigration and Customs Enforcement (ICE) issued a memorandum directing its deportation officers to “take enforcement action against all removeable aliens encountered in the course of their duties.” Over the past year, this memorandum—and similar memoranda—implementing DHS’ expansive border security and immigration enforcement policies have been used to arrest and detain current DACA recipients; former DACA recipients saving money to apply for renewal; and Dreamers too young to yet qualify for DACA. Dreamers have already passed extensive background tests to obtain DACA status; the administration should make it clear that Dreamers, including current DACA recipients and those whose protections have lapsed, are not a priority for immigration enforcement.
Secretary Nielsen suggested last month that if Congress fails to pass legislation protecting Dreamers, DACA recipients whose protections have expired will not be immigration enforcement priorities so long as they do not commit any crimes. But just one week later and in conjunction with the White House rollout of its current framework, a senior White House official stated that DACA recipients whose protections have expired will be processed for deportation if they encounter immigration officers just as other “illegal immigrants.” Just last week, ICE arrested and detained a DACA recipient whose protections expired due to an error and who would very likely qualify for the path to citizenship described in the president’s own framework. The administration should issue clear guidance stating that Dreamers will not be treated as immigration enforcement priorities and that discretion will be used to prevent detention and deportation of young people who do not pose a danger to public safety.
The president says that he wants to provide a path to citizenship for Dreamers. Republicans and Democrats in Congress say they share that goal. And while 81 percent of adults polled want to allow Dreamers to remain in the country, only 15 percent say they should be deported. But despite the nearly universal support for protecting Dreamers, Congress and the administration have yet to enact legislation and people continue to lose protection every day. The Trump administration—without input from Congress—created this crisis by ending DACA. While lawmakers work toward a durable solution, the administration should take the above actions to avoid further harm and establish some goodwill in the process.
Tom Jawetz is the vice president of Immigration Policy at the Center for American Progress.