What Happens Next for DACA?

In wake of Supreme Court ruling blocking Trump from ending DACA, the future of the program protecting young undocumented immigrants remains uncertain.

July 6, 2020
 
Wikimedia Commons/Rhododendrites
Protesters in New York City oppose Trump's attempt to end DACA in September 2017.

Advocates for immigrant college students cheered the Supreme Court’s recent 5-to-4 decision blocking the Trump administration from immediately ending the Deferred Action for Childhood Arrivals program, which provides protection against deportation and gives work authorization to about 650,000 immigrants who were brought to the U.S. as children with their parents and without legal authorization.

DACA remains vulnerable, however. President Trump and officials in his administration have said they plan to end the program, and the Supreme Court ruling left the door open for them to do so should they follow certain steps.

Meanwhile, a group of students who were too young to apply for DACA before the program was closed to new applicants in 2017 are newly eligible. They now have to decide whether the benefits of applying are worth the risk of giving their personal information to the government and revealing their status as undocumented immigrants.

The Migration Policy Institute estimates there are about 66,000 young people who have aged into DACA eligibility -- applicants have to be at least 15 years old -- since 2017, when the Trump administration tried to end DACA but was stopped by federal courts that kept the program in place for existing DACA recipients. This cohort is now entering the traditional age for college.

Legal experts say the Supreme Court ruling vacating the Trump administration’s rescission of the program in 2017 means that U.S. Citizenship and Immigration Services must resume processing new DACA applications. Immigration advocates fear the agency will drag its heels.

A spokesperson at USCIS would not say if the agency is currently accepting or processing new DACA applications. The spokesperson said in an email that the agency is still reviewing the Supreme Court decision and would have no comment beyond that of Deputy Director for Policy Joseph Edlow, who blasted the Supreme Court’s decision in a June 19 statement.

Edlow’s statement asserted that the “court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”

Janet Napolitano, president of the University of California, oversaw the establishment of DACA in 2012 as secretary of homeland security secretary under former president Obama. She said colleges “have a lot left to do in order to protect our DACA students.”

“No. 1, we will need to confirm that new DACA applicants can now enroll in the program, because in my view the Supreme Court’s holding takes us back to 2012, when the program was created, and that means new applicants can now enroll,” Napolitano said during a webinar about the ruling hosted by the Presidents Alliance on Higher Education and Immigration, a group of college presidents that advocates for welcoming policies for immigrants and international students.

Napolitano also said that applications for advance parole -- a form of advance permission for DACA beneficiaries to travel outside the U.S. and re-enter -- should once again be granted by USCIS.

"We’re going to need, I think, to confirm that, and I think we can anticipate that the administration may resist that interpretation of the Supreme Court’s holding," she said.

Bill Hing, a professor of law and migration studies and director of the Immigration Law Clinic at the University of San Francisco, said some attorneys have already sent in completed DACA applications for new applicants. “Everyone is assuming that USCIS is going to process those as soon as they get them. DACA has been reinstated in full.”

Other immigration law experts agreed. “You take a picture of what it was like the day it was shut down: that has to be reinstated in its entirety,” said Michael A. Olivas, a professor emeritus at the University of Houston and an expert on immigration and higher education law.

Nevertheless, Olivas fears the administration will find ways to slow or sabotage full reinstatement of the program. If the Supreme Court decision went the other way, Olivas asked, “Do you think it would have taken more than a nanosecond to shut it all down?”

Adding to the uncertainty, USCIS plans to furlough more than two-thirds of its staff in August if it does not receive additional funding from Congress.

Ur Jaddou, the director of the watchdog group DHS Watch and former general counsel at USCIS, said during a recent press conference organized by the pro-immigration advocacy group America's Voice that the furloughs could result in the agency halting the processing of all DACA applications, renewals as well as new applications.

What happens with DACA will have implications for higher education.

“I think it’s going to be really important to see what happens with new applications,” said Roberto Gonzales, a professor at the Harvard Graduate School of Education and director of Harvard’s Immigration Initiative.

He said colleges have become so used to serving DACA students that they have largely stopped talking about undocumented students who do not qualify for DACA. At the same time, he said, "we’ve seen a growing distance between DACA beneficiaries and undocumented students" in terms of their access to opportunities and benefits. He noted that his state, Massachusetts, has not extended in-state tuition rates to undocumented students, but DACA beneficiaries are eligible for the lower in-state rates.

States have a wide range of policies about access to in-state tuition and state financial aid for undocumented and “DACA-mented” students. A new policy brief from the Presidents Alliance says that ending DACA would end access to in-state tuition rates for current DACA recipients in eight states: Arkansas, Idaho, Indiana, Iowa, Maine, Massachusetts, Mississippi and Ohio. Furthermore, current DACA recipients in two states -- Alabama and South Carolina -- would be barred from enrolling in their states’ public colleges.

“In addition to barriers to enrollment and more expensive tuition rates, the end of DACA would undermine the financial ability of many students throughout the U.S.,” the brief states. “It would hurt DACA recipients’ ability to pay for tuition and the costs associated with a higher education, including housing, food, and books. In a 2019 survey, 93 percent of DACA recipients indicated that they ‘pursued educational opportunities that [they] previously could not,’ with a potential end to DACA placing these educational pursuits at risk.”

Leidy Leon, an 18-year-old pro-immigration activist with the United We Dream coalition, was too young to apply for DACA before Trump ended it in 2017. She said the inability to apply for DACA left her feeling unsure of her future and unmotivated to continue in school, but encouragement and support from people close to her helped get her through high school.

"Now that the Supreme Court ruled against the Trump administration, the possibility of me being able to apply for DACA for the first time feels much more real," Leon said during the America's Voice press conference. "It would mean the absolute world to my family and I because we wouldn’t be filled with such uncertainty and fear."

Leon said she will be attending the University of California, Merced, this fall.

"Getting DACA would minimize my anxiety and make it easier to plan for my future during and after college," she said.

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