Immigrants set to lose deportation protections thanks to Trump are counting on either Congress or the courts to come through.
Left: Jeff Sessions, photo by Alex Wong/Getty; Right: A DREAMer at a protest, photo by John Moore/Getty
Just days after Hurricane Harvey ravaged her city, Karla Perez, a third-year law student at the University of Houston, woke up to yet another blow: She could soon lose permission to live and work in the US. On Tuesday morning, the Trump administration officially moved to rescind Deferred Action for Childhood Arrivals, an Obama-era program granting deportation relief and work permits for young immigrants who were brought to the country illegally as children.
"It's the most difficult news I've had to process in the last year," said Perez, 24, who moved with her parents to Houston from Mexico City when she was three years old and has had DACA the past five years. (Applicants must reapply every two years.) "But I have to continue to have hope for the best, and will do anything possible to make that happen. What I'm hoping for now is that Congress will take action immediately to protect people like me."
With Trump's revocation of DACA, about 800,000 immigrants—known as "DREAMers"—like Perez are threatened with potential deportation and a loss of their work permits. But both DREAMers and Donald Trump actually appear to be on the same side in wanting Congress to pass legislation that would grant the immigrants long-term protection and legal rights—which immigration experts call a difficult, but possible, fix.
In his announcement Tuesday, Trump said that he chose to revoke the executive order by Barack Obama because "the legislative branch, not the executive branch, writes these laws."
Trump offered a six-month "window of opportunity for Congress to finally act" on such a bill, meaning that DACA recipients whose permits expire in the next six months can apply for renewals, as long as they submit those applications within the next month. Each permit remains effective for two years, Trump confirmed.
"I do not favor punishing children, most of whom are now adults, for the actions of their parents," said Trump, who previously suggested he would keep DACA in place. "But we must also recognize that we are nation of opportunity because we are a nation of laws."
Then, Tuesday night he tweeted, "Congress now has 6 months to legalize DACA (something the Obama administration was unable to do). If they can't, I will revisit this issue!" (It was not immediately clear if he meant that he would reverse himself later or not.)
Congress is currently considering the Recognizing America's Children (RAC) Act, which would offer a path to legal permanent residency for undocumented immigrants who arrived in the US under age 16 and before 2012.
That bill, authored by Florida Republican Representative Carlos Curbelo with 18 co-sponsors, would allow the immigrants to apply first for a five-year legal residency if they had a high school diploma and had been accepted into college or the military or had a valid work permit. North Caroina Senator Thom Tillis is expected to introduce a companion bill in the Senate soon, a House GOP staffer told me.
But even with bipartisan support, passing such legislation presents a challenge. Cornell University immigration law professor Stephen Yale-Loehr told me such a measure had "less than a 50 percent chance" of success, partly because of Congress's high number of legislative priorities including hurricane relief, funding the federal government, raising the debt ceiling, and passing tax reform.
"Trying to get anything more done is a tough lift," said Yale-Loehr. "Having said that, DACA recipients are extremely well organized and have done a masterful job of mobilizing public opinion on their behalf, so if anyone can get it done they could."
Congress has also failed to pass similar legislation for over a decade, Yale-Loehr noted: Some version of a DREAM Act has been proposed every session since 2001. "They have an actual deadline and Congress always does better when it has a firm deadline so in that sense it's good," continued Yale-Loehr, "but it's going to be difficult."
President Trump's pressure on Congress could help prompt the lawmakers to act, said Greg Chen, Director of Government Relations for the American Immigration Lawyers Association. Even though Congress has remained divided under the current administration, Chen noted that DACA had "broad bipartisan support" and widespread support from the American public.
"A great deal hinges on President Trump signaling to his Republican base that he thinks this bill makes sense," Chen told me. "Trump can be a real unifier here. He said he wants Congress to act and his next step should be to say, 'I support this.'" (So far, Trump hasn't embraced a particular bill or plan of action.)
That support, however, does not extend to the more conservative factions of the GOP, warned Steven Camarota, director of research for the conservative Center for Immigration Studies. Camarota said the only way a DREAM Act would pass would be if Democrats agreed to compromise on another immigration debate—for instance, by agreeing to a decrease in legal immigration, which was proposed by a bill called RAISE Act.
"If people are willing to compromise DACA for elements of the RAISE Act you might see something happen," Camarota said, referring to a bill that would drastically cut avenues for immigrating legally into the US. Camarota also proposed further increases in interior immigration enforcement or other "protections for American workers" in exchange for DACA.
"Obviously advocates on the side of DACA won't want that but the clock is ticking," he said.
DACA supporters are already filing legal challenges to Trump's memorandum revoking DACA. The National Immigration Law Center, Yale Law School's Worker and Immigrant Rights Advocacy Clinic, and Make the Road New York filed a lawsuit in the US District Court for the Eastern District of New York challenging the federal government's decision on behalf of a 26-year-old Mexican DREAMer.
Mayra Joachin, staff attorney at NILC, told me Trump's order was unconstitutional because it reverses a longstanding policy without a stated reason, and because it racially discriminates against Latinos, who comprise 93 percent of DACA recipients. "Whenever the government creates a long-established policy it can't reverse it without adequate reason for doing so," she said.
The attorneys general of New York and Washington have also threatened to sue the administration.
"President Trump's decision to end the DACA program would be cruel, gratuitous, and devastating to tens of thousands of New Yorkers—and I will sue to protect them," New York Attorney General Schneiderman said in an emailed statement. His office could not immediately confirm when the lawsuit would be filed.
But Yale-Loehr warned that those lawsuits could be a difficult fight.
"This was a program started by executive action which means that Trump can take it away by executive action," he said.
If neither legislation nor litigation successfully reinstates DACA, a small portion of DREAMers could be eligible for other immigration benefits that could enable them to remain in the country legally—but the vast majority will have no other legal options, immigration attorney Ken Schmitt told me.
"Very few of them will have another option to obtain status," said Schmitt, chair-elect for the Missouri and Kansas chapter of the American Immigration Lawyers Association, who works with DACA recipients. "Many of them will go back into the shadows and that is the great failure of our immigration system."
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