On January 9, Judge William Alsup of the United States District Court for the Northern District of California ordered a preliminary injunction against the rescission of the Deferred Action for Childhood Arrivals (DACA) program until the relevant litigation regarding the suspension has completed. Agreeing with the plaintiffs, the judge ordered provisional relief that enabled former DACA recipients, also known as Dreamers, to reapply for the status and avoid the risk of deportation when the program was set to end in March. However, the judge did not confer the same rights onto any new, prospective DACA applicants.
The order justifies the relief in that the “plaintiffs have demonstrated that DACA recipients, as well as their families, schools, employers, and communities, are likely to suffer substantial, irreparable harm as a result of the rescission.” On a qualifying note, the order continues that “[the plaintiffs] have not made a comparable showing as to individuals who have never applied for or obtained DACA,” hence their exclusion from being able to reapply.
The Obama administration established DACA in the June of 2012 through an executive order meant to accomplish what the failed DREAM Act had proposed over the last decade, since the original bill’s inception in 2001. Covering around 690k immigrants, the program primarily grants two years of protection from deportation for undocumented immigrants, in addition to a Social Security Number (enabling them to pay taxes and access several government services) and eligibility for a work permit. Eligibility for the program requires applicants to have entered the US before the age of 16, have no convicted felonies or major misdemeanors, and have a high-school diploma or be currently enrolled in school.
On September 5 last year, President Trump ordered an end to the DACA policy, closing off the application any new recipients and giving former recipients until October 5 to renew their status with United States Citizenship and Immigration Services. Justifying his order, President Trump said that he hoped that Congress would find a more permanent legislative solution for DACA recipients instead of the temporary protections offered by the program.
Speaking at press conference on the same day, Trump expressed, “I have a love for these people, and hopefully now Congress will be able to help them and do it properly.” US Attorney General Jeff Sessions adopted a different tone, arguing that the DACA policy had “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.” President Trump set the program to expire in six months from the date of his order, meaning that Congress would have until March of 2018 to implement a new policy replacing DACA.
However, some challenged the legality of the suspension under the premise described by the judge above, including UCLA and the Attorneys General for California, Maine, and Minnesota—some of plaintiffs in Judge Alsup’s case. Since January 13, the USCIS has resumed accepting applications from former DACA recipients. However, reactions from the Trump administration toward the ruling were scathing.
On January 10, a day after the decision, the president tweeted on his @realDonaldTrump account: “It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.” His comments allude to the phenomenon that the Ninth US Circuit Court of Appeals, mainly covering the western US District Courts and including Judge Alsup’s, is typically liberal in its jurisprudence and therefore likely to affirm the preliminary injunction. The Ninth Circuit was responsible for upholding the injunctions against Trump’s several travel bans against predominantly Muslim countries.
If the case is further appealed to the Supreme Court, the future of the litigation and the injunction becomes murky. Neil Gorsuch’s appointment by the president to the bench means that the typically divided rulings that the Court produced on integral cases, like the constitutionality of Trump’s travel bans, would likely turn in his favor.
White Press Secretary Sarah Huckabee Sanders maintained that “President Trump is committed to the rule of law, and will work with members of both parties to reach a permanent solution that corrects the unconstitutional actions taken by the last administration.” Her comments refer to the ongoing talks between Democrats and Republicans in Congress revolving the budget deal that includes negotiating new immigrant policies.
While no formal legislation has appeared to materialize as of yet, Republicans have suggested that in trade for a legislative replacement of DACA, the Democrats must concede the diversity lottery in favor of a merit-based system and agree to end the practice of chain migration. Outlining his points, Trump tweeted on December 29: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!”
Chain migration refers to the ability US green cards to have their children, spouses, and other relatives immigrate to the United States under F4 “family” visas. Due to these visas, roughly 61% of all admitted immigrants to the United States from 1981 to 2016 were “chain migration immigrants,” according to a September 2017 study by Jessica Vaughan for the Center for Immigration Studies.
However, the final waiting time for getting relatives a green card varies by preferences outlined by USCIS. Analysts at Vox suggest that getting a green card for lower-preference relatives, such as siblings, may typically take over a decade. As such, F4 visas do not allow green card holders to sponsor the immediate chain immigration of family members.
The diversity lottery, formally known as the Diversity Immigrant Visa program, grants visas to immigrants from countries with low immigration rates to the United States to help diversify the pool of arriving immigrants. President Trump has argued that this should be replaced by a more meritocratic system, tweeting on January 14 that “I, as President, want people coming into our Country who are going to help us become strong and great again, people coming in through a system based on MERIT. No more Lotteries! #AMERICA FIRST.” While not formalized yet, the replacement would focus on English proficiency, level of education, and relevant training in prospective applicants for visas while still maintaining the diversity of the immigrant pool.
In addition to the January 9 ruling that has upset DACA negotiations between the President and Congress, Senator Durbin (D-Illinois) alleged on January 12 that Trump had made several disturbing remarks in policy negotiations on immigration. According to Durbin, Trump questioned why the United States should accept immigrants from “sh-thole” countries like Haiti or various nations in Africa instead of nations like Norway, which to some public commenters suggested a belief that immigration to US should be merited on the basis of wealth or that the US should avoid granting green cards to immigrants of African origin or those with darker skin tones.
Others present at the meeting corroborated Durbin’s account of Trump’s language, including Senator Flake (R-Arizona) who tweeted on January 12 that “The words used by the President, as related to me directly following the meeting by those in attendance, were not ‘tough,’ they were abhorrent and repulsive.” His comments refer to Trump’s denial the same day, who tweeted that “The language used by me at the DACA meeting was tough, but this [referring to the term sh-thole] was not the language used. What was really tough was the outlandish proposal made – a big setback for DACA!”
Several senators who attended the meeting came to Trump’s defense. This includes Tom Cotton (R-Arkansas) and David Perdue (R-Georgia) who on the same day released a statement that said, “We do not recall the President saying these comments specifically but what he did call out was the imbalance in our current immigration system, which does not protect American workers and our national interest.”
The international community was not as reserved in its condemnation of the American president. In Geneva, UN spokesman Rupert Colville for the High Commissioner for Human Rights responded, “You cannot dismiss entire countries and continents as ‘[sh-tholes],’ whose entire populations, who are not white, are therefore not welcome.” Spokeswoman Ebba Kalondo for the African Union commented, “This is particularly surprising as the United States of America remains a global example of how migration gave birth to a nation built on strong values of diversity and opportunity.”
Asked about his views on the DACA policy and its value, AP Computer Science teacher David Baker from Rockville High said, “I very much support DACA. I think it’s a really cool idea to … give people a path to citizenship who really deserve it.” He also spoke highly of the diversity lottery under its current implementation: “I like the idea of the merit-based [system], but I think we also need to … be especially open to countries that are in [Trump’s] eyes not worthy. We need to have our doors open to everyone.” Baker further explained, “The countries that he called, well, whatever are the countries are the countries that need our help the most. A merit-based system would keep those people out, which I don’t agree with.”
About 58% of Americans, according to a POLITICO/Morning Consult poll conducted in September 2017, agree with allowing Dreamers to have legal residency and a pathway to citizenship, while another 18% agree with allowing legal residency but with no opportunity for naturalization. However, opinions on the diversity lottery are less favorable: only 25% of Americans expressed support for the lottery visa program in a Reuters/Ipsos poll conducted in November 2017.
The injunction by Judge Alsup gives Dreamers another chance to secure two more years of deferred action, but the decision comes at a time of tumultuous change to American immigration policy. With no bill in sight as of yet, the fates of the Dreamers and those of undocumented immigrants as a whole remain unknown.
Article by Moco Student staff writer Alex Rankine of Rockville High School