Almost one month after the U.S. Supreme Court ruled that President Donald Trump’s administration didn’t properly end a program that protects undocumented immigrants who were brought to the country as children, the Department of Homeland Security still had not reopened the program to new applicants.
The Trump administration has long tried to end the Barack Obama-era Deferred Action for Childhood Arrivals, or DACA, program, which provides temporary protection from deportation — though not a path to citizenship — for people who were brought to the United States before their 16th birthday and had lived in the country continuously for at least five years.
The administration was never able to completely end the program. Instead, lower court rulings forced it to continue processing renewals for people who obtained status before September 2017.
But even after the Supreme Court ruling, DHS was still processing only DACA renewals, not new applications.
A new federal court ruling could force that to change.
“The rescission of the DACA policy is vacated, and the policy is restored to its pre-September 5, 2017 status,” U.S District Court Judge Paul Grimm wrote in a July 17 decision out of Maryland.
The new district court ruling, a month after the Supreme Court’s decision, means that if DHS declines to reopen DACA to new applicants it will be held in contempt, said Sergio Gonzales, deputy director of the Immigration Hub, a national, progressive advocacy organization.
“Either they are breaking the law and … they’re in contempt, or they start accepting new applications, but we expect that they’ll respond maybe as soon as today or next week,” Gonzales said during a July 17 conference call discussing Latino voters’ sentiments heading into the November election.
Denver immigration attorney Matthew Shaftel is skeptical that DHS will immediately obey the court decision.
He said the department may move to only resume processing new applications from Maryland — home to the court that issued the ruling.
“Traditionally, when one district court rules against [DHS], if not immediately appealed and enjoined by a higher court (not going to happen here), the ruling is followed nationwide for consistency,” Shaftel wrote in an email.
But, he added, “DHS is being very obstinate on this issue, to put it politely.”
DACA’s future remains uncertain
Following the Supreme Court’s June ruling, Trump tweeted that his administration would again try to completely end the program.
The Supreme Court asked us to resubmit on DACA, nothing was lost or won. They “punted”, much like in a football game (where hopefully they would stand for our great American Flag). We will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court’s…..
— Donald J. Trump (@realDonaldTrump) June 19, 2020
“The Supreme Court asked us to resubmit on DACA, nothing was lost or won,” Trump tweeted on June 19. “… We will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court’s … ruling & request of yesterday.”
That’s not exactly what the high court said — it simply ruled that DHS did not follow the proper procedure in ending DACA and that it was free to try again if it could provide sufficient justification.
Acting DHS Secretary Chad Wolf also indicated the administration would try again to dismantle the program.
Advocates had argued that in the meantime the Supreme Court’s June 18 decision should force the administration to restore the program to its former, pre-Trump capacity. But as of mid-July, DHS had not issued any new guidance on the program.
Instead, DACA recipients (often called “Dreamers” after failed federal legislation that would have provided them with a path to citizenship) — and those who met the program’s qualifications but haven’t been able to apply — were left in limbo.
It’s not just protection from deportation, along with government benefits and the ability to work legally in the United States, that DACA provides, said Amber Blasingame, a Denver attorney who helps DACA recipients submit renewals.
Before the Trump administration’s move to rescind the program, DACA also allowed Dreamers to travel freely without risk of being deported, through something called “advance parole,” Blasingame said.
“Advance parole is a type of travel document,” she said. “It permits somebody to leave the country and come back into the country, so it permits them to be ‘paroled’ into the United States.”
When the Supreme Court decided that the program was ended unlawfully, that should have forced it to resume accepting new applicants and renew the privilege of advance parole, Blasingame said.
The Trump administration could develop a more “robust memorandum” that follows the proper procedure for completely rescinding DACA, she said — but the required rule and comment process means that probably couldn’t happen until January.
The Latino vote looms large, Democrats say
“The assumption I think at this point is that if President Trump is reelected then, yeah, we will probably see the program rescinded sometime in early 2021,” Blasingame said. “But if (Joe) Biden or somebody who’s a little more supportive of the program (is elected), then we may not see the program rescinded.”
Politicians aiming to drum up support for Democratic candidate Biden, and to flip Republican seats in the Senate — including that of Colorado Sen. Cory Gardner — say the Latino voting bloc will be crucial.
“We have some 32 million Latinos who will be voting in this election next year nationwide,” said Ken Salazar, a Colorado Democrat who served as interior secretary under former President Obama and was recently appointed to co-chair Biden’s Latino Leadership Committee.
“We’re the largest non-white voting bloc in this upcoming election,” Salazar said on the conference call. “Here in my state, 330,000 registered Latinos will be coming to the polls and voting. We’re going to do everything we can to make sure that we get them there, and the Latino community and their future really is much in line with the vision that both John Hickenlooper and Joe Biden have for the United States of America.” Former Colorado Gov. John Hickenlooper is a Democrat running for Gardner’s seat.
Clarissa Martinez, who was also on the call, is deputy vice president for policy and advocacy at UnidosUS, a nonprofit advocacy organization that promotes progressive immigration reform and aims to increase Latino voter engagement.
“One community alone cannot completely change the election,” Martinez said. “But what we do know, just looking at the electoral map, is that Latinos are going to be decisive in a number of battleground states, like Arizona, like Colorado.”
She referenced a recent UnidosUS poll of 1,829 Colorado Latinos, 88% of whom indicated that they support continuing the DACA program.
“Latinos are bearing the disproportionate impacts of the pandemic,” Martinez said. “They continue to wait for action on equitable relief while nearly 50% of them have experienced themselves or someone they know be hospitalized due to (COVID-19). … So far, Latinos seem to be getting silence from Senator Gardner.”
In 2018, Gardner helped craft a bipartisan proposal that would have created a pathway to citizenship for DACA recipients, and he cosponsored the DREAM Act in 2017. Under the DREAM Act, DACA recipients who had completed a high school degree and been admitted to college, entered the workforce or served in the military could have qualified to take certain steps to obtain U.S. citizenship.
“It’s not enough, in my view, to simply cosponsor a bill and not actually work the bill to ensure that it gets to the floor of the chamber in which he serves,” Rep. Joe Neguse, a Democrat from Colorado who has advocated for immigration reform, argued on the conference call.
Regardless of who ends up in the White House, and whether the DACA program is accepting new applications, there will be no direct path for Dreamers to obtain U.S. citizenship without new legislation. Different versions of the DREAM Act have failed repeatedly since 2001.
“There is too much political divide to expect any legislation to be passed by Trump,” Shaftel wrote. “Trump and the Senate would simply try to extract too hefty a price to give any relief for DACA recipients, [and] consequently, I think we are unlikely to see any legislation that is a true fix come out anytime soon.”
Editor’s note: This story has been updated to accurately refer to the program of advance parole.