Over 700,000 young adults who have been educated in the U.S. and are part of our communities and workforce are still living lives in limbo waiting for the fate of the Deferred Action for Childhood Arrivals (DACA) program to be resolved.
The administration rescinded DACA effective March 6, 2018. Since that date, those who already had DACA status have been able to renew their DACA only due to decisions from federal courts in California and New York finding the rationale for rescinding DACA unlawful, and ordering the government to continue to process DACA renewal applications. However, these decisions did not order the government to process new applications from first-time applicants, leaving those who met all of DACA’s eligibility criteria except the requirement to be at least age 15 to apply, without the opportunity to gain DACA’s protections and work authorization once they reached their 15th birthdays.
On April 24, 2018, the U.S. District Court for the District of Columbia issued a ruling in NAACP vs. Trump, once again finding that the government’s rationale for rescinding DACA was unlawful, but for the first time, ordering the government to process DACA applications from initial applicants. This decision was applicable nationwide. The judge stayed his decision for 90 days, to allow the Government time to further explain its rationale.
On August 3, 2018, having received the government’s response, the judge in NAACP v. Trump reaffirmed his prior decision, but stayed his ruling for a further 20 days to allow the government time to appeal, which appears likely.
On August 8, 2018, oral argument will be held in another DACA case to be heard by the same U.S. District Court Judge in Texas who had previously struck down proposed programs under the Obama Administration that would have expanded DACA and also provided protections for some parents of U.S. citizen children. Filed by the Texas Attorney General and several other states, the Texas v. Nielson case challenges the legality of the DACA program, rather than the legality of the administration’s decision to end DACA, and asks the court to enjoin DACA.
In July, a coalition of Texas business leaders, including the Texas Association of Business, several chambers of commerce from Houston, Austin, El Paso, and San Antonio among others, as well as businesses such as IBC Bank and Southwest and United Airlines filed a “friend of the court” brief expressing their strong opposition to the Texas A.G.’s effort to end DACA. They noted that more than 15% of DACA holders live in Texas, and explained the myriad ways those with DACA contribute to Texas’s economy as entrepreneurs, employers, employees, consumers and taxpayers. They argued that the significant and unrecoverable costs to Texas employers, communities, GDP and tax coffers must tip the balance of equities in favor of not enjoining DACA.
Should the Texas federal court block DACA, there will be a conflict among the federal courts. The administration has already signaled that it will immediately seek a stay of the other federal court decisions requiring the government to continue processing DACA applications, which could lead to DACA holders becoming undocumented and unemployable when their current DACA status expires. An injunction in Texas v. Nieson also sets the stage for the Supreme Court to consider DACA’s legality.
In short, with three federal courts finding that the administration’s rescission of DACA was illegal, and with a fourth lawsuit hoping to strike down DACA’s legality, the nearly 800,000 DACA holders in the U.S. have no clarity about whether they will be able to remain and contribute to this country, which for all practical purposes is their true home. Not only are they in limbo, but the U.S. economy is too due to their tremendous impact, as spokespersons for business and economic interests nationwide, ranging from chambers of commerce, to high tech leaders, to the Koch brothers continue to make clear.
The responsibility lies with Congress to provide a clear path forward to permanent residency for DACA holders. To date, Congress has been unable to get the job done, and President Trump continues to hold DACA holders hostage to a restrictionist agenda that would slash family-based immigration and build a costly and likely ineffective border wall.
Until Washington gets it done, it appears the fate of those with DACA will continue to be in the hands of the courts.