On Tuesday, September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s intentions to officially rescind the Deferred Action for Childhood Arrivals (DACA) program, a 2012 Obama Executive Order that has deferred deportations for those who came to the United States as young immigrants. Although the administration’s action on DACA has been widely hailed in the media as “anti-Dreamer”, “anti-immigrant”, and even “racist”, in reality it is likely the most pro-immigrant, pro-Dreamer, option he could have chosen.

People commonly mix up the federal Development, Relief and Education for Alien Minors (DREAM Act) and the Deferred Action for Childhood Arrivals program or think they’re the same. However, DACA is an Executive Action taken by President Obama in 2012, in response to the failure of Congress to Pass the Dream Act, which is bipartisan legislation first introduced in Congress in 2001. It is intended to allow people, who entered the United States under the age of sixteen years, presumably through no fault of their own, and who meet other requirements, to become lawful permanent residents in the United States. It has been reintroduced in Congress several times, including a big push in 2010, which again was unsuccessful. To add to the confusion, both qualifying groups have come to be known as “Dreamers”.

In response to the DREAM Act’s failure to pass, in 2012 President Obama implemented DACA via executive order, which allows people who meet essentially the same requirements as those set forth in the DREAM Act, to be shielded from removal, and to receive Employment Authorization in renewable two-year increments, which in turn would allow them to receive Social Security numbers, and drivers’ licenses in every state but Nebraska. Although DACA provides legal presence, it does not provide legal status.

The issue that the Trump administration, and many states, has with DACA, is not the young immigrants that it, and the Dream Act, are intended to benefit, but rather with the constitutionality of Obama’s implementation of DACA via executive order, thereby circumventing Congress’ decision not to pass The Dream Act. In fact, virtually everyone familiar with the subject acknowledges the significant benefit the 800,000 Dreamers are having on our economy through paying Social Security and payroll and income taxes, attending universities, buying, cars, condos and the like, as well as the fact that these young people have done nothing wrong.

However, recently DACA has been threatened with permanent termination, not by the Trump Administration, but by the Attorneys General of ten states who have told Trump that if he doesn’t revoke DACA by September 5, 2017, they will file suit to have it found to be unconstitutional. In fact, this is not an idle threat. Not only does the Trump administration believe that DACA would be found to be unconstitutional in the Courts, Obama’s executive order known as Deferred action for Parents of Americans (DAPA), which was an Obama attempt to expand DACA by executive order, was already found to be unconstitutional by the 5th Circuit Court of Appeals, a decision not overturned by the US Supreme Court. Accordingly, if Trump failed to revoke DACA and it was found to be unconstitutional by the Court’s the Dreamers would find themselves to be in a very difficult situation.

Conversely however, if Trump immediately revoked DACA, 800,000 students, young professionals and taxpayers, all of whom who have already passed security checks, would find themselves in the position of being removable from United States. Clearly, neither option could reasonably be interpreted as benefiting the Dreamers.

That being said, Trump, took the one action that has the most and best chances of actually benefiting the Dreamers. By deferring revocation of DACA for six months, and pressuring Congress to pass a bill in that time to make the temporary protections afforded to the Dreamers under DACA, permanent, President Trump has chosen the option most likely to avoid a court finding that DACA is unconstitutional by properly placing the question back into the hands of Congress to be resolved lawfully.

Finally, as a further assurance to the Dreamers, Trump has stated that, should Congress fail to resolve this issue within six months, he will re-visit it at that time. In sum, President Trump’s action should not cause Dreamers to be afraid. Rather, they now have reason to be optimistic about their futures in the United States.

 

Joseph G. Cella, Esq.
has been practicing
US Immigration Law since 1993.
CELLA & ASSOCIATES, LLC

 

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