How DACA Became a Bargaining Chip

If you’re confused about what’s going on with DACA—Deferred Action for Childhood Arrivals, an Obama-era program that provided work authorization and limited protection from deportation for certain young, undocumented immigrants—that’s by design. It’s being used as a pawn as Trump continues to try to deliver on his promise to “build that wall,” leaving the lives of millions of people hanging in the balance. Most immigration experts agree that a better, permanent immigration fix is needed. Instead of working on that permanent fix, Trump is using DACA and the DREAM act as bargaining chips, and in the process he’s continually upending the lives of Dreamers, whose fate seems to change almost weekly.

In September, Attorney General Jeff Sessions announced that the Trump administration was rescinding the program, effectively phasing out DACA protections and leaving the young beneficiaries without legal work authorization and at risk for deportation. Ending the program left thousands of young people in limbo as they scramble to determine their future in the United States and the impact that losing DACA would have on their education, employment, and families.

Although Trump indicated that he was willing to negotiate with Democrats to create a path to protect Dreamers, negotiations have stalled and a Congressional solution appears to hinge on Trump’s ever-changing whims regarding his border-wall obsession. In a nutshell, he’s holding DACA hostage until he gets his wall, and using Democrats’ resistance to such a deal as a way to scapegoat them for the impending government shutdown, despite the fact that the Republicans control both the House and the Senate. If anything is clear about the DACA debacle, it is that Trump does not care about the program or its beneficiaries; he only cares about how he can use it to leverage funding for a border wall pretty much no one wants.

Despite Trump’s blustering, the administration was just dealt a blow by a federal court in the Northern District of California. On January 10th, U.S. District Judge William Alsup ruled on a preliminary injunction request by the Plaintiffs in the on-going Regents of the University of California v. The United States Department of Homeland Security case. The ruling requires the Department of Homeland Security temporarily continue to accept certain DACA applications while the courts continue to hear the U.C. Regents’ challenge to Trump, effectively reviving DACA and putting it on life-support.

Here’s what you need to know about the ruling and what could be next for DACA and the Dreamers.

About the lawsuit

On September 8, 2017, the Regents of the University of California filed suit against the Department of Homeland Security, arguing that revoking the DACA program was unlawful and would harm the University and its students. The complaint alleged that the sudden and ill-considered end of the program is a violation of the Administrative Procedures Act and unconstitutional. The complaint argued that ending DACA was nothing more than an “unreasoned executive whim” and that terminating the program violates the Administrative Procedures Act and the Constitution.

What the preliminary injunction means

On November 1st, the plaintiffs in the Regents of the University of California case submitted a joint motion to the court asking for a preliminary injunction that would require the Department of Homeland Security to continue the DACA program while the lawsuit plays out in federal court. The motion argued that the court should require the federal government to continue the DACA program during the lawsuit because the Plaintiffs are likely to win their challenge and stopping the program in the meantime, while the litigation continues, would cause the Plaintiffs irreparable harm, including the potential loss of thousands of students and employees whose DACA could expire while the litigation is pending.

On January 9, the Court issued a lengthy decision partially granting the Plaintiffs’ request and mandating that the federal government resume most of the DACA program while the lawsuit plays out in court. The opinion noted that the Plaintiffs “have shown a likelihood of success on their claim that the rescission was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law. Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and capricious.”

In addition to the glimmer of hope that language gives for the final resolution of the lawsuit in favor of keeping DACA, it also provides concrete benefits to some DACA recipients right now.

Based on the finding that ending DACA will cause irreparable harm, the Court ordered that the Department of Homeland Security revive DACA and lay out a process for current DACA recipients to renew their status. Although the order requires the Department of Homeland Security to accept DACA renewals, the Department does not have to accept new applications for those who didn’t previously hold the status.

Of course, the very nature of a preliminary injunction means that it is not a permanent solution. The court order only requires that DHS continue to accept DACA renewals until this litigation is finished and a permanent order is entered. Additionally, the government is expected to expeditiously appeal the preliminary injunction. If the government wins on appeal, a higher court could block the preliminary injunction and DACA would again disappear.

For now, the Department of Homeland Security has issued instructions on who is eligible to apply for renewal under the court order and how to apply.

Waiting for a Congressional Fix

The preliminary injunction is a temporary lifeline for DACA and it underscores the urgency of working to pass a congressional solution to protect DREAMERS. Trump seemed to flip-flop about his support for passing a clean DREAM Act in a meeting last week, when he first said he would like to pass a clean version and then changed his mind once he was reeled in by his aides. On Sunday, however, Trump tweeted that DACA was “probably dead” because the Democrats “don’t really want it.” Despite Trump’s flip-flopping, Democrats continue to push for a clean DREAM act to protect young immigrants. The precariousness of this DACA preliminary injunction shows just how important Congressional action on the DREAM Act is — without it, more than half a million young people’s lives continue to be in limbo.