The Next News Could Be Bad News For DACA Recipients

Attention may soon focus on the plight of people brought to America as children who face deportation if Congress does not protect them. Upcoming court decisions could leave hundreds of thousands vulnerable unless legislators respond with a new way to protect “Dreamers.”

In 2012, President Barack Obama began the Deferred Action for Childhood Arrivals (DACA) program. DACA established criteria that allowed qualified young people to be protected from deportation and be granted work authorization.

In 2017, President Donald Trump ended DACA. However, in June 2020, the Supreme Court concluded that although the Trump administration had the right to end DACA, it did not follow proper procedures, especially since DACA recipients had reliance interests.

“In July 2021, a Texas court ruled that the DACA program was unlawful, but issued a partial stay (i.e., pause) of its ruling to allow existing DACA beneficiaries to continue to renew their DACA and work authorization,” according to an analysis by Berry Appleman and Leiden. “The court vacated DACA, however, as to new applicants. The Biden administration appealed the ruling. The U.S. Court of Appeals for the Fifth Circuit heard oral arguments on July 6, 2022.”

To help address the legal issues surrounding DACA, in August 2022, the Department of Homeland Security published a final regulation. Previously, DACA existed based on a 2012 memorandum. The Biden administration hopes the regulation will strengthen its position in court.

The stakes are high. More than 600,000 current DACA recipients could be forced to leave the country as their authorization period ends. Analysts point out the issue goes beyond the numbers since the end of DACA would mean potential deportation for people married to U.S. citizens, men and women with children born in the United States and individuals employed as doctors, nurses, medical researchers, computer specialists and in many other professions.

Reports from the Migration Policy Institute, American Immigration Council, Boundless, Bipartisan Policy Center, the Cato Institute, Center for American Progress and others have concluded that ending DACA would be harmful to Americans.

To better understand the legal situation surrounding DACA, I interviewed Andrew Pincus, an attorney with Mayer Brown who has argued 30 cases before the U.S. Supreme Court. (He provided written responses.) Pincus has filed amicus briefs on behalf of the business community in the DACA cases.

Stuart Anderson: What do you expect at the Fifth Circuit on DACA, and if so, why?

Andrew Pincus: Although I believe there is a strong argument that the Department of Homeland Security has the statutory authority needed to establish the DACA program, the Fifth Circuit, in an earlier case, held that the Department lacked authority to set up the DAPA [Deferred Action for Parents of Americans] program, which provided deferred action and work authorization for the parents of American citizens and lawful permanent residents. The district court decision invalidating DACA relied heavily on that precedent, and there is a good chance that the Fifth Circuit judges will conclude that the DAPA ruling requires them to invalidate DACA.

Anderson: If the Fifth Circuit decision is unfavorable, what would happen next?

Pincus: The next step would be for the federal government and the intervenors to seek review of that ruling in the Supreme Court. Hopefully, they would do so expeditiously.

Anderson: What is the best case for the court decisions on DACA?

Pincus: The best case for the more than 600,000 people whose lives depend on DACA would be for Congress to act and eliminate the uncertainty—and the risk that their lives would be destroyed by a final court ruling invalidating DACA. The second-best result would be a judicial decision upholding DACA. This is second-best because of the risk that a future administration would try to eliminate DACA, as President Trump did in 2017.

Anderson: What is the worst case?

Pincus: The worst case, which unfortunately is a very realistic possibility, is that the courts will invalidate DACA. That means that more than 600,000 people will lose the ability to work, to drive a car, to participate in society, and also that they will face the possibility of being deported to countries they have never known because they came here as children.

Their families also will suffer, including the more than 500,000 U.S. citizen children of DACA beneficiaries whose mother or father no longer will be able to work to put food on the table and a roof over their heads and who may be forced to leave their children and move to a different country. And the whole U.S. economy will suffer: a recent report explains that, on average, 1,000 people will be removed from the workforce every business day for two years—at a time when millions of jobs are going unfilled due to a shortage of workers. Many of these jobs are in crucial professions, such as healthcare, which will lose 1,600 workers each month for two years, and education, which will lose 800 professionals each month.

Anderson: What role should Congress play?

Pincus: Congress should enact legislation that codifies the DACA program and, in particular, the protection against deportation and eligibility for work authorization and advance parole, and that also allows the nearly 100,000 people eligible for DACA to apply for the program. That will eliminate the horrible risk faced today by these individuals and their families that their lives will be ruined by the judicial elimination of DACA.