In June 2012, former President Barack ObamaBarack Hussein ObamaObama reveals his top books of 2019 The biggest political upsets of the decade Controversial radio host Don Imus dies at 79 MORE announced the creation of the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary lawful status for a two-year period, subject to renewal, for certain undocumented immigrants who had come to the United States before reaching the age of 16.
This was supposed to be a compassionate act, but I foresaw unintended consequences if a person with strong immigration enforcement policies were to become the president before the passage of a bill to provide permanent resident status for the participants.
Donald TrumpDonald John TrumpNorth Korea holds political conference before year-end concessions deadline set for US Gabbard says impeachment will only ’embolden’ Trump Warren: ‘If there’s a lawful order for a subpoena, I assume’ Biden would comply MORE became the next president.
Trump announced that he was going to terminate the program but said that he would give Congress six months to pass legislation to make permanent resident status available to the participants before implementing the termination.
Trump also proposed a legalization program for 1.8 million DACA participants as part of a four-pillar Framework on Immigration Reform & Border Security, but the Democrats would not agree to the concessions he expected in return for the legalization program.
Lawsuits filed to block Trump’s termination
In January 2018, a U.S. district judge in California issued a provisional nationwide injunction blocking the Trump administration’s repeal of DACA on the ground that the repeal was based on the flawed legal premise that the Obama-era policy was illegal.
Judges in New York and Washington, D.C., subsequently issued similar orders.
Trump filed a consolidated appeal of the three decisions with the Supreme Court.
At an oral argument before the Supreme Court in November 2019, the initial question was whether the government’s decision to end DACA is something that courts can review at all.
According to the government, the administration simply ended a prior administration’s choice not to enforce immigration policy. This is within the administration’s discretion and therefore cannot be second-guessed by the courts.
The second question was whether the Trump administration’s decision to end DACA violated the law.
Everyone agreed that the administration could end DACA. The issue was whether it was done properly.
Opponents of termination argued that the Trump administration was required to provide an “accurate, reasoned, rational, and legally sound explanation” for its decision to end DACA and “utterly failed to do so.” Therefore, the case should be sent back for a proper determination of whether DACA should be terminated.
Some justices were not convinced that sending the case back to the lower courts would make any difference, and Justice Neil GorsuchNeil GorsuchLeft presses 2020 Democrats to retake the courts from Trump GOP predicts bipartisan acquittal at Trump impeachment trial Finding an animating issue is Democrats’ biggest 2020 challenge — not Trump MORE observed that a do-over would take six more years, during which DACA recipients would remain in limbo.
A decision on the appeal is expected by summer.
Obama had other options
Obama guaranteed that a comprehensive immigration bill he could strongly support would be introduced during the first year of his administration — and he could have kept that promise. From January 2009 to January 2011, the Democrats had a majority in the House, and until Scott Brown’s special election in 2010, they had enough votes in the Senate to stop a filibuster.
Obama and the Democratically controlled Congress could have passed any immigration bill they wanted during this period, but that didn’t stop Obama from claiming in June 2012 that he had to create DACA with an executive order because Congress had failed to act.
Deportation proceedings now being reopened
Zoila Pelayo, who has been a DACA participant since 2012, recently received notice that Immigration and Customs Enforcement (ICE) has sought reopening of her removal proceedings.
And this is just the beginning.
ICE has informed CNN that every DACA recipient whose deportation case was administratively closed can expect to see his or her proceeding reopened.
DACA participants have already conceded deportability
DACA was granted only to aliens whose presence in the United States is unlawful — and unlawful presence is a ground for deportation under 8 USC §1227(a)(1)(B). The government, therefore, can establish deportability simply by establishing that an alien was a DACA participant.
Moreover, there is a one-year time limit on applying for asylum under 8 USC §1158(a)(2)(B), so it isn’t likely that any of the DACA participants will be able to file an asylum application if they are placed in removal proceedings.
DACA application information can be used as a basis for initiating removal proceedings
The answer to the 10th question in DACA Frequently Asked Questions says that information obtained during the DACA application process will not be used to initiate removal proceeding.
The last sentence in that answer, however, warns that “this policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”
What information does the Department of Homeland Security have on DACA participants?
The DACA application, Form I-821D, required identity documents that have the applicant’s photo on them, such as a driver’s license or passport — and the application process required a Biometric Services Appointment at which fingerprints, photographs and signatures were taken.
This means that for the rest of their lives in the United States, DACA participants will have a heightened risk of being identified and arrested as deportable aliens.
Obama initially thought that he did not have the authority
When Obama was asked in March 2011 to prevent immigrants whose parents had brought them to this country when they were children from being deported, his response was that he couldn’t just suspend deportations with an executive order. Congress passes the laws, and the executive branch’s job is to enforce and implement them.
He was right.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.