Trump may be DACA participants’ best hope, but will Democrats play ball?

In June 2012, the Obama administration’s DHS Secretary, Janet Napolitano, issued a memorandum that established the Deferred Action for Childhood Arrivals (DACA) program. Five years later, the Trump administration’s Acting DHS Secretary Elaine C. Duke issued a memorandum that rescinded Napolitano’s memorandum.

Several groups of plaintiffs prevailed in lower court challenges to Duke’s memorandum, and the Trump administration appealed to the Supreme Court.

In a decision rendered on June 18, 2020, the Supreme Court made an initial finding that, “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”

The Administrative Procedure Act requires federal agencies to engage in reasoned decision making and directs the courts to set aside agency actions if they are arbitrary or capricious. The Court found that DHS failed to consider whether to retain the forbearance of removal proceedings and what, if anything, to do about the hardships that terminating the program might cause to DACA participants. This “dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

Accordingly, the Court remanded the case to DHS so that it can consider the problem anew.

This leaves the matter in the hands of the Trump administration, which now has detailed instructions from the Supreme Court on how to end the DACA program properly.

This is a “be-careful-what-you-wish-for-situation”

It is far from apparent that the benefits of the DACA program outweigh the risks of participating in it — and continuing the program as it is will expose more vulnerable immigrants to these same risks.

The “Devil” is in the details — or the fine print:

The Obama administration’s policies on using information gathered during the application process are explained in the answer to the 19th question on the DACA Frequently Asked Questions page:

“Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?

“A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear … The information may be shared with national security and law enforcement agencies … to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense … 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.”

The answer to question 24 is important too.

“Q24: What steps will USCIS and ICE take if I engage in fraud through the new process?

“A24: If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain DACA or work authorization … you will be subject to criminal prosecution.”

Aliens who submit DACA applications make themselves incredibly vulnerable: They admit alienage, concede unlawful status, and provide DHS with their names and addresses and other personal information. If an administration — any administration — ends DACA and puts them into removal proceedings, the government simply has to provide evidence of DACA participation to establish alienage — and proof of alienage shifts the burden of proof onto the aliens.

8 USC §1361 states that an alien in removal proceedings has the burden of showing the time, place, and manner of his entry into the United States, and if he does not sustain this burden, he will be presumed to be in the United States in violation of law.

8 USC §1227(a)(1)(B) provides that aliens who are in the United States in violation law are deportable.

Deportable aliens can apply for relief from deportation, but that doesn’t help if they aren’t eligible for relief. For instance, 8 USC §1158(2)(B) makes aliens who have been living in the United States ineligible for asylum unless they can demonstrate by clear and convincing evidence that their applications were filed within one year after the date of their arrival in the United States.

Simply put: The very fact of DACA participation could be used against participants to deport them.

Solution

President Donald Trump proposed a DACA legalization program in January 2018, that would be a good place to start. 

He based his proposal on this four-point framework:

1. Secure the Southern and Northern borders with a combination of border walls, technology, and personnel, and an end to legal loopholes;
2. Provide legal status for approximately 1.8 million DACA participants and other DACA-eligible immigrants;
3. End chain migration by limiting family sponsorship visas to spouses and children; and
4. Eliminate the Diversity Visa Program.

There is room for considerable flexibility in the border security and legalization provisions, and terminating the DVP should not be a problem. The Democrats already have shown a willingness to end that program: Section 2303 of Sen. Chuck Schumer’s (D-N.Y.) Gang of Eight bill would have repealed the DVP if it had been enacted.                                            

Ending chain migration is the deal-breaker. Too many citizen and lawful permanent resident families would be hurt if visas for siblings, parents, and adult sons and daughters were eliminated.

I have proposed a compromise that would limit the chain migration restriction to the parents of DACA participants. After all, the heart of DACA is the fact participants find themselves in the U.S. illegally not through any act of their own — because their parents brought them here when they were children. It’s appropriate to not allow these parents to then benefit from a program to give lawful status to the children they brought here illegally.

The alternative to trying to work something out with Trump is to hope that the Democrats will gain control of the congress and the White House in the upcoming elections, but the Democrats didn’t pass legislation to help undocumented aliens the last time that happened.

They could have passed any immigration bill they wanted during the first few years of the Obama administration. From January 2009 to January 2011, they had the majority in the House, and until Scott Brown’s special election in 2010, they had a strong enough majority in the Senate to overcome a filibuster.

And voters had reason to expect immigration legislation. When he was campaigning, Obama said, “I can guarantee that we will have, in the first year, an immigration bill that I strongly support.”

That promise was broken; DACA was the compromise, and — unless fixed with an actual change in the law — it leaves the blameless at serious risk of deportation.

Given that Democratic track record, there’s a good case it’s better to at least try to work something out now with Trump.

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.