Dreamers Awaken: Fighting for Obama’s Immigration Program

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By Laura D. Francis

Dec. 1 — President-elect Donald J. Trump has promised to terminate President Barack Obama’s program protecting more than 740,000 young, undocumented immigrants. But will he?

Obama only embraced the deferred action for childhood arrivals program after being pressured by the young immigrants it covers, Angelo Paparelli of Seyfarth Shaw in Los Angeles told Bloomberg BNA Nov. 29. These immigrants, referred to as “dreamers” because of their coverage under the DREAM Act legislation, are “virtually the same as young people who were native-born citizens” in terms of their training on the Constitution and civil rights, he said.

They lobbied and protested to bring DACA into existence, so “why would they not do it again” to keep it from being terminated? he asked.

DACA, launched in 2012, provides renewable, two-year periods of deportation protection and work authorization to young, undocumented immigrants who came to the U.S. as children and who meet certain educational criteria.

There’s a growing consensus that Trump likely will prevent those with DACA from renewing their work permits when they expire, and immigrants who haven’t applied for DACA now won’t be able to.

“To me the big question is: what about the people who currently have DACA and their work permits have not yet expired?” Stephen Legomsky, professor emeritus at the Washington University in St. Louis School of Law, told Bloomberg BNA Nov. 30. “My best guess” is Trump won’t take those permits away, he said.

Legal Hurdles

It wouldn’t be a good move politically, he said.

But on top of that, Trump would face a legal hurdle: regulations that require the government to give individualized notice of its intent to revoke a work permit, said Legomsky, who was chief counsel at U.S. Citizenship and Immigration Services when DACA was implemented. Those regulations also require that the person with the work permit be allowed 15 days to provide arguments for why the work permit shouldn’t be revoked, he said.

In other words, Trump can’t just sign a piece of paper taking away DACA work permits, Legomsky said.

Trump could argue that DACA work permits weren’t lawfully issued in the first place and therefore he doesn’t have to follow the regulations, he said. But that undoubtedly would spur litigation, and the work permits would remain valid while the lawsuit is proceeding, he said.

Another potential avenue would be to allow DACA recipients to apply for deferred action through regular channels, rather than a special program, Legomsky said. That “would accomplish very little,” however, because of the need to show special circumstances warranting relief, he said.

Resurrecting the Dream

“Because of the success of the program,” there will be a recognition “that there will be more harm than good to take out the program altogether,” Maria Gabriela “Gaby” Pacheco of TheDream.US said Nov. 30. TheDream.US provides college scholarships to undocumented students.

But Pacheco, whose activism was instrumental in bringing about DACA, thinks cutting off renewals and new applications but allowing existing work permits to remain will lead to something bigger.

Keeping work permits in place means DACA won’t completely run out until 2018, she said. And that provides “wiggle room” for Congress to pass the DREAM Act, she said.

The Development, Relief, and Education for Alien Minors (DREAM) Act would provide legal immigration status to essentially the same group of immigrants covered by DACA, and was the impetus for the administrative program. The legislation has been introduced in multiple Congresses and passed by one chamber more than once, but it has never been enacted.

Pacheco thinks the bill has a better chance of passing under the Trump administration. “I’ve always believed that we wouldn’t get immigration reform done under a Democratic president,” she said. That’s because of a Republican belief that any legalized immigrants would then be married to the Democratic Party, she said.

With a Republican Congress and Republican president, there’s a “high likelihood” the DREAM Act will become law, Pacheco said. But that will also come with legislation focusing on border security and interior enforcement, she said.

Mounting Pressure

In the meantime, political pressure is mounting to preserve DACA.

Democratic Reps. Luis Gutierrez (Ill.), Zoe Lofgren (Calif.) and Lucille Roybal-Allard (Calif.) recently called on Obama to pardon DACA recipients ahead of Trump’s inauguration.

Sen. Richard Durbin (D-Ill.), a proponent of the DREAM Act, is working with Sen. Lindsey Graham (R-S.C.) on legislation to preserve DACA recipients’ status. The bill would provide them a temporary reprieve to give Congress time to work on a larger immigration package, he said in a Dec. 1 statement.

Durbin is hopeful that the bill will be ready for introduction by Dec. 9. It would be “a bipartisan effort to say to the new president, ‘give these young people a fighting chance. At least protect them until we’ve had a chance to act on the larger immigration issues before us,’” Durbin said.

Since Nov. 28, Durbin, the Democratic whip, also has been advocating for DACA recipients on the Senate floor.

He and other senators, including Independent Bernie Sanders (Vt.) and Democrats Mazie Hirono (Hawaii), Al Franken (Minn.), Dianne Feinstein (Calif.), Robert Menendez (N.J.), Jack Reed (R.I.) and incoming Sens. Kamala Harris (Calif.) and Catherine Cortez Masto (Nev.), have tweeted their support for the program, using the hashtag #savedaca.

The heads of 440 colleges and universities also have signed a letter spearheaded by David Oxtoby, president of Pomona College in Claremont, Calif., urging Trump not to kill DACA.

Former Homeland Security Secretary Janet Napolitano, who now heads the University of California system, wrote a Nov. 30 op-ed for the New York Times espousing the benefits of DACA and explaining its legal basis.

And in a Nov. 30 blog post, Maurice Goldman, chairman of the American Immigration Lawyers Association Media Advocacy Committee, called on the business community to join the fight for DACA.

‘This Is Their Country.’

Pacheco said she hopes that Trump and other Republican leaders “can see and understand that while they might have not liked the way that the president went about doing this policy change for immigrants in this country, it’s been a policy change that’s been beneficial.”

“There’s a lot at stake for the country when we go after immigrants, and especially when you go after a large population of young people who have been raised here,” she said. “This is their home, this is their country,” and they are “prospering” because of DACA, she said.

The left-leaning Center for American Progress has estimated that terminating DACA would result in $433.4 billion in lost gross domestic product over the next 10 years, based on an estimate that about 87 percent of DACA recipients are working.

A recent survey conducted by immigrant youth organization United We Dream, the National Immigration Law Center, CAP and Professor Tom Wong of the University of California, San Diego found that 95 percent of DACA recipients are either working or in school, 48 percent got a job with better working conditions, 63 percent got a better paying job, 54 percent bought their first car and 12 percent bought their first home.

“We’re talking about a group of people who are going to work as long as they’re in the U.S.,” either legally or not, Legomsky said. If they’re working illegally, “employers have the opportunity to exploit them at low wages,” which creates an incentive to hire them over U.S. workers, he said. It also lowers the overall market wage, which lowers U.S. workers’ wages, he said.

By providing work permits to these undocumented immigrants, “you eliminate both of those perverse incentives,” Legomsky said.

What to Do for Now?

The National Immigration Law Center is advising potential DACA applicants not to apply if they haven’t already done so.

But the pro-immigrant organization says those with DACA should go ahead and apply for renewal. Their information is already in the government’s database, and so there’s no extra risk of being discovered by putting in a renewal application. And, if Trump does honor existing work permits, that gives DACA recipients extra time to continue working.

Anyone who already has advance parole—which allows DACA recipients to leave the country and return without any negative immigration consequences—can go ahead and travel abroad, but should come back before the Jan. 20 inauguration, NILC said.

Pacheco, who came to the U.S. from Ecuador at age 8, started her activism as a quest for higher education. Her counselor had told her not to pursue college because of her undocumented status, but she found a way into community college anyway, she said. Her sisters weren’t so lucky.

“That sparked in me a desire to fight against that injustice,” she said.

Regardless of what happens, Pacheco said she still has the education she received in college and during her time as an advocate. “That can never be taken away from me,” she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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