By Gabriela Leija-Hernandez, Woodson Martin Democracy Fellow, Madison Center for Civic Engagement
The Biden Administration announced last week a plan that would allow recipients of the Deferred Action for Childhood Arrivals program, commonly referred to as DACA, to enroll in a healthcare plan through Medicaid or the Affordable Care Act. This news brought comfort to the approximately 580,000 current DACA recipients, about one third who do not have access to health insurance because their immigration status does not meet the current definition of “lawful presence.”
While this news would benefit existing DACA recipients, the DACA program has continually been in legal jeopardy, making appearances in several courts, including the Supreme Court. Rulings have allowed the DACA program to stay constitutional, but with some caveats. There are detrimental drawbacks if DACA is terminated and it affects not only the recipients but it could affect their communities as well. 
A Presidential Executive Order in June 2012 originally established the DACA program. It was created with the intent to protect certain undocumented immigrants that were brought to the U.S. as children from removal proceedings and receive authorization to work for a two-year period that had the opportunity to be renewed. DACA recipients are able to apply for a driver’s license, social security number, and a work permit. Over 832,000 recipients have been eligible to work, attend school and plan their lives without the constant fear of deportation. This is a temporary type of permission for these individuals to stay in the U.S. that does not provide lawful status or pathway to U.S. citizenship. DACA recipients are integrated into communities and contribute to them. As of 2020, over 200,000 recipients worked in healthcare, education, and food-related industries.
Back in 2017, following the Trump administration’s decision to rescind the 2012 DACA memorandum, there was an uproar from those who felt rescinding the program was inhumane. This included Hollywood actor Bambadjan Bamba who heard the decision and announced his own DACA status publicly for the first time. Bamba explained that he hid his status due to fear, but he wanted to show that the film and TV industry is run by immigrants and that social media can be mobilized to convince Congress to legalize Dreamers so others would be able to have the opportunities DACA has given him.
During its 2019-2020 term, the Supreme Court agreed to review the legal decisions from the lower courts in regards to DACA. In June 2020, a 5-4 Court decision ruled that while the 2017 attempt to terminate was unlawful, the Court recognized that the federal government does retain legal authority to end the DACA program if it were to do so in compliance with the Administrative Procedure Act. The DACA program was technically restored to its standing prior to the 2017 attempt following this Court decision as well as a federal court order issued in July 2020. However, roughly six weeks after this decision, the Secretary of Homeland Security issued a memorandum making major changes to the DACA program. The concerns that the existence of a program like DACA sends mixed messages about the DHS’s intention to consistently enforce immigration laws as Congress has written them and the concern that this program may encourage individuals to perilously journey into the country and endanger children in the midst. These changes included plans to reject all pending and future initial DACA requests from those eligible for DACA, but had not participated in the initiative prior. In November 2020, a New York Federal judge set aside limitations placed on DACA from this memorandum and invalidated it on the basis that the then secretary of Homeland Security was improperly appointed to his position. A month later, the same judge ordered the limitations be set aside and the DACA should be fully reinstated of its protections. Days later, the agency began accepting new applications for the program.
The battle did not end there. By the end of December 2020, in a separate lawsuit in the Southern District of Texas, the U.S. District Judge heard arguments on cross motions for summary judgment in a case where the State of Texas sought complete termination of the DACA program. In July 2021, the same judge issued a ruling that found DACA to be unlawful and blocked DHS from approving any new and first time applications to the program. He granted a permanent injunction vacating the original 2012 memorandum which created the DACA initiative on the basis that its implementation violated the APA. Individuals currently protected by DACA or those seeking to renew their protections are not immediately impacted by the decision and will continue to retain their protected status. In September 2021, the Biden administration appealed the decision. Two weeks later, the US Citizenship and Immigration Services published a proposed rule that would recreate the DACA program in federal regulation to preserve and fortify the DACA policy.
On October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed the July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the DACA policy created in 2012 to be unlawful. Under both procedural and substantive grounds, it was decided that the 2012 DACA memo was unlawfully published without the required notice-and-comment procedures while also violating the Immigration and Nationality Act of 1952. The Fifth Circuit preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DACA rule. Over a week later, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay to the DACA final rule.
DHS issued a final rule that generally codifies existing policies with limited changes and it took effect on October 31, 2022. Renewal DACA requests and accompanying requests for employment authorization will continue to be accepted and processed under the final rule, consistent with court orders and an ongoing partial stay. Initial DACA applications will be accepted but not processed. DHS is currently prohibited from granting these initial applications and related employment authorization requests under the final rule due to the October 2022 order issued by the U.S. District Court for the Southern District of Texas.
If the program continues to be threatened, individuals would lose work authorization and this would lead to increased financial pressure. Additionally, the imminent threat of deportation that the DACA status removes, would occur again. Currently, the socioeconomic impact of DACA in its recipients is significant. Findings from a national survey reveal that in 2019, 58% of respondents moved onto a job with better pay, 48%moved onto a job with better working conditions, and 53% moved to a job with health insurance or related benefits. The respondents reported that these moves to better jobs were better fits for their education, training, and overall long-term career goals. Not to mention, out of the 40% of respondents that were in school, a whopping 83% were working towards a bachelor’s degree or higher. These respondents credit DACA with allowing them to pursue educational opportunities previously closed to them.
Respondents reported upward mobility in their socioeconomic status. 6% of respondents started their own businesses following receiving DACA and 17% were able to obtain professional licenses. Additionally, 79% of respondents indicated feeling “financially independent” because the average wage of a DACA recipient rose. This not only benefited the recipients, but the U.S. economy. The purchasing power and tax payments of a DACA recipient increased at the federal, state, and local levels since DACA recipients were purchasing their first cars and homes. It’s predicted that without change to the current ruling, the courts could end DACA as soon as next year. This would cause an average of 1,000 DACA recipients to lose their jobs every week, especially in areas of work that are experiencing shortages and DACA recipients tend to work in: health care, education, and more.
The program does not only increase the economy, but the psychological well-being of recipients. While stress is still a determinant because of the prior rulings and overall unpredictability of the standing of the program, there is an overall decrease in stress that allows recipients to perform better in their jobs and school. All the progress the program has intended to create is alleviated under the current ruling as the courts are still not accepting new applications and unpredictability still waivers on. Mixed status families are concerned about the inconsistency that comes with the program and say unless things change, the program continues to bring stress to families.
The future of DACA in the courts remains uncertain. What is certain is that Dreamers continue to live with the fear of losing their work permits and protections from deportation. Many eligible to be dreamers and obtain these opportunities and protections can’t because of the Fifth Circuit Court’s decision on the program. The court is not extending any relief to those with pending first-time applications or those whose DACA has lapsed over a year. There is a plea from advocates asking people to address their Congress who could act in this situation to pass permanent protections for immigration youth with a bipartisan solution. If no additional legislative or administrative action is taken seriously, many will lose their deferred status and many more will never obtain deferred status.
Recent Comments