Pres. Donald Trump is getting massive criticism from Hispanic and Civil Rights groups across the country, for being too aggressive and far reaching with his recently signed executive orders on immigration reform. While the orders deliver on measures he campaigned on, there was one group specifically missing from his plan. So far, his get-tough on illegal immigration fails to deliver on his pledge to rescind Pres. Barack Obama’s 2012 directive that gave undocumented immigrants brought to the United States as children a chance to work her legally without getting deported.
Another Obama Legacy
While other aspects of Trump’s immigration platform, such as building a wall along the border and hiring 5,000 new border guards will take time to implement, Trump could take the stark and immediate action and end the Deferred Action for Childhood Arrivals, or DACA. If he shutters the program altogether, hundreds of thousands of young people who’ve spent most of their lives in the U.S. could be thrown out of work, with some losing the ability to pay for school.
Obama’s legacy on immigration is complicated. He oversaw more than 2 million deportations, a record number. His 2013 attempt to pass immigration reform in Congress failed, and a 2014 attempt to extend DACA to parents was turned back by the courts. DACA was by far his most concrete immigration success with more than 750,000 young undocumented immigrants taking advantage of the plan.
However, DACA was always vulnerable because it wasn’t legislation passed by Congress. Obama fashioned the program using executive action, after multiple failed attempts at passing the Dream Act, a bill granting the same group of undocumented immigrants a path to citizenship. Obama said many times that he was limited in what he could do without congressional approval.
According to recent data, about 7,000 new DACA applications and 21,000 renewals arrive each month (DACA participants have to apply to renew their status every two years). Even without direct action from Trump, immigration analyst expect applications to come to a screeching halt.
Hina Naveed, 26, was granted a two-year DACA permit in 2013. She was 10 when her family came to the U.S. to seek medical treatment for her older sister. Her relatives overstayed their visas to continue the treatment, leaving Naveed undocumented and unable to work legally or even get a driver’s license. After DACA, she was able to go to nursing school and became a registered nurse.
She said she doesn’t regret applying for the program, even though she now faces an incoming president who may end it. “I was able to finally have a sense of relief,” she said. “Before DACA, I think I was just in a holding period.”
The post-Inauguration Day policy challenge already has Trump facing pressure and lobbying from both sides in the immigration debate, as hard-liners urge him to scuttle the program altogether while Democrats and some Republicans warn that doing so would be catastrophic for those whose livelihoods and education now depend on the special immigration status.
“We’re trying in a variety of different ways, directly and indirectly, to tell them this would be a disaster for 744,000 DACA recipients and this would be a disaster politically, because of all the friends and family that they have,” Sen. Dick Durbin (D-Ill.), who came up with the concept of DACA in 2010, said in an interview.
But some Trump supporters say they’re expecting Trump to toe the tough line he laid out during his presidential bid and emphatically end the program on Day One.
“He needs to do something immediately to show that he’s serious and when he made his promises, he’s going to keep them,” said Corey Stewart, Trump’s former campaign chairman in Virginia. “One of the best ways to show that determination is to immediately, by executive order, terminate the DACA program.”
Can Congress Help?
Dreamers’ best hope could be Congress ― though many Republicans have repeatedly voted to end DACA. A bipartisan group of senators proposed a bill, called the Bridge Act, that would maintain protections and work authorization for current DACA recipients and others who are eligible for the program. But that bill doesn’t provide them permanent protections.
“This is an awful choice for many of these young people. They’re desperate to be part of America’s future and they’re being offered temporary responses,” Sen. Dick Durbin (D-Ill.), the bill’s co-sponsor, said in December.
“In my view, the DACA executive order issued by President Obama was unconstitutional and President-elect Trump would be right to repeal it,” Graham said in a statement on Thursday. “However, I do not believe we should pull the rug out and push these young men and women ― who came out of the shadows and registered with the federal government ― back into the darkness.”
The Bridge Act wouldn’t grant legal status to DACA recipients, but would allow them and others who would qualify for the program to maintain work authorization in a new “provisional protected presence” status that would last for three years from the time the bill was enacted. It would also bar the government from using information collected for DACA for other purposes ― such as deportation ― with some exceptions for national security or non-immigration criminal investigations.
Trump Options
A middle-ground option would allow Trump to phase out the program by allowing existing work permits, which are issued for two years at a time, to expire naturally without renewing them — a path recommended by Sen. Marco Rubio (R-Fla.). A variation of this option would be to let the program phase out for a few months, but choose a firm date — for instance, the end of this year — when all the existing work permits would be declared invalid.
Or Trump could leave the program intact for a while, perhaps arguing that he wants to give Congress time to work on legislation that might address the Dreamers, his promise of a border wall, guest worker visas and related immigration issues.
“For people who already have the permits, you wouldn’t take it away from them and they wouldn’t be allowed to renew it, and that gives us time to find a legislative solution,” Rubio said of his preferred method, which would appear to result in more and more permits expiring over time unless Congress acts. “I’m going to wait and see what the White House wants to do.”
According to immigration lawyers, the Trump administration would likely have to revoke each work permit case by case, serving notice on each of the 740,000 beneficiaries and giving them 15 days to submit reasons not to rescind their work authorization.
“That would be such a labor-intensive, expensive process that it is hard for me to imagine they’re going to do it,” said Stephen Legomsky, a former chief counsel at U.S. Citizenship and Immigration Services under Obama.
While Trump — and his choice to lead the Justice Department, Sen. Jeff Sessions (R-Ala.) — declared repeatedly during the campaign that they think Obama’s executive action was illegal, they could argue there is precedent to allow DACA to continue for a while if legislative action appears to be imminent.