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As DACA immigrant program turns 10, legal challenges persist

People rally outside the Supreme Court in 2019 over President Donald Trump's decision to end the Deferred Action for Childhood Arrivals program. (Jacquelyn Martin/AP)

The federal program for young immigrants known as “dreamers” turns 10 on Wednesday, facing legal challenges that could end it before Congress decides whether to provide them with a path to U.S. citizenship.

The Deferred Action for Childhood Arrivals (DACA) program, created during the Obama administration when President Biden was vice president and then threatened with rescission during the Trump administration, has focused on aiding young undocumented immigrants who had mostly grown up in the United States but were unable to get driver’s licenses, afford college or work legally.

The program has offered about 825,000 people a chance to change their lives if they met eligibility requirements that allowed them to apply for renewable two-year work permits, Social Security cards and driver’s licenses.

“It’s the most successful immigration integration policy in the last few decades,” said Roberto Gonzales, a sociology professor at the University of Pennsylvania who has studied DACA recipients for years.

But the program has always had opponents, who through the years have raised concerns about its legality and illegal immigration into the United States.

The most imminent threat to DACA is a federal lawsuit filed by Republican officials in Texas and several other states who argue that the Obama administration did not have the authority to create the program. The U.S. Court of Appeals for the 5th Circuit in New Orleans has scheduled a hearing for July 6.

President Donald Trump argued that President Barack Obama had illegally overstepped his authority by creating DACA without pushing a bill through Congress, and he tried and failed to phase out the program. The Supreme Court blocked Trump on a technicality, saying he had not followed the rules to unwind the program, but termination remains a possibility.

His attorney general at the time, Jeff Sessions, who announced in 2017 that the Trump administration would attempt to end the program, said in an interview last week that Trump had tried to broker a deal that would have allowed dreamers to obtain permanent legal status in exchange for increased enforcement and less family-based migration — ideas that repelled Democrats because they could make it harder for immigrant families to stay together.

Sessions, also a former senator, said he believed a deal was still possible, if Democrats were willing to increase enforcement, especially on the border.

The U.S. Border Patrol made 364,768 apprehensions nationwide in fiscal 2012, the year DACA was created, federal records show. In the first seven months of this fiscal year, Border Patrol agents have made 1.2 million apprehensions, mostly on the U.S.-Mexico border.

“The American people, they want a lawful system where the laws are enforced,” Sessions said in a telephone interview Friday. “You can fight over how many come or what kind of skills they have, but they expect their government to create an immigration system that has integrity.”

Obama created the program on the anniversary of Plyler v. Doe, a 1982 Supreme Court ruling that struck down a Texas law that allowed school districts to expel undocumented children. But the high court had never said what should happen to such students after high school graduation. After being unable to get Congress to pass a law, Obama said he decided to create DACA.

But U.S. District Judge Andrew Hanen in Texas sided with the states in July 2021, ruling that the Obama administration “illegally implemented” the program, and he barred the administration from adjudicating new applications, leaving 80,000 first-time applicants in limbo, according to the nonpartisan Migration Policy Institute.

Hanen, a Republican appointee, allowed existing DACA recipients to renew their work permits while the lawsuit is on appeal.

Thomas Saenz, president and general counsel for the Mexican American Legal Defense and Educational Fund, which has defended the program in court and is involved in the appeal, said that the 5th Circuit could rule at any time after the July hearing, and that the Supreme Court ultimately could decide the program’s future.

But he said a future president could rescind the program again.

“That’s the problem,” he said. “That’s why we need permanent legislative solutions.”

As a backup, Biden has ordered the Department of Homeland Security to issue a regulation that would “preserve and fortify” DACA, in addition to urging lawmakers to pass a citizenship bill that would cover all undocumented immigrants. Congress has not passed a citizenship bill since 1986.

“We will continue to fight for the DACA program,” Homeland Security Secretary Alejandro Mayorkas said in a telephone interview Monday. “It has changed deserving people’s lives for the better.”

Despite efforts to preserve the program, federal records show that the number of active participants has been dropping steadily, from more than 700,000 immigrants in 2017 to about 611,270 in March. Eligible applicants must have resided in the United States since June 15, 2007, arrived before they turned 16 and pass background checks.

Tens of thousands left the program to become permanent residents or naturalized citizens, typically after marrying American citizens, according to a Congressional Research Service report citing figures from 2019, but even more did not renew. Some said they could not afford the $495 application fee, advocates for immigrants said, while others were afraid to share their information with the U.S. government for fear of being deported.

“What we hear is that people just don’t trust it,” said Juliana Macedo do Nascimento, deputy director for federal advocacy at United We Dream, an immigrant-run advocacy group and a DACA recipient from Brazil. “We heard stories about some folks saying: ‘I don’t want the government to have my information. I’m going to move so they don’t have my address. I don’t want them coming for me and my family.’”