At Its 10th Anniversary, DACA Faces a Tenuous Future Despite Societal Benefits
On June 15, 2012, President Barack Obama stood in the White House Rose Garden and announced a new program that would transform the lives of hundreds of thousands of unauthorized immigrants brought to the United States as children. Titled the Deferred Action for Childhood Arrivals (DACA) program, it was, at the time, seen as a stopgap measure to provide relief to unauthorized immigrant youth after Congress had repeatedly failed to offer a path to legal status for these “Dreamers.” Ten years on, DACA has proven more enduring than expected and remains the only large-scale policy change implemented during this period related to the legal status of unauthorized immigrants in the country.
During this time, more than 800,000 people have benefited from DACA’s grant of protection from deportation and access to work permits and other documentation—permitting expansive new educational and work opportunities. DACA holders have enjoyed broader access to higher education; found new and better jobs; and been able to set down deeper roots, starting families, buying homes, and creating businesses. Beyond allowing DACA recipients to improve their lives and those of their families, these greater opportunities have benefitted the country overall, allowing individuals who have spent most of their lives in the United States to more fully realize their potential, with resulting benefits for employers, public coffers, and communities. DACA also established the government’s ability to quickly stand up a large-scale program and swiftly adjudicate applications.
Nevertheless, in the absence of congressional action to grant permanent relief to Dreamers, DACA remains a stopgap measure—one that stands on tenuous footing. President Donald Trump’s attempt to end DACA and ongoing legal challenges to a president’s authority to make significant immigration policy changes through executive action have left the program on life support. The latest challenge to DACA is likely to reach the Supreme Court, which will decide whether the executive branch has the authority to create such an expansive program. Meanwhile, Congress has repeatedly declined to extend broader protections to Dreamers, making DACA the only available option for qualifying youth to achieve some semblance of legal presence.
This article reviews the evidence on DACA’s impacts, looks at the increased reliance on similar limited legal statuses to help segments of the unauthorized immigrant population, and examines the legal challenges the program has and is continuing to face.
Situating DACA in Immigration History
In the aftermath of the Senate’s failure to pass the DREAM Act in 2010 by a five-vote margin, capping a series of similar failures going back to 2001, Obama created DACA following intense lobbying by Dreamers and their allies. Though DACA fell short of the path to permanent legal status that the DREAM Act would confer, it represented a bold step by Obama to use his executive authority to extend prosecutorial discretion in immigration matters.
Before DACA, deferred action—a concession by the government to not deport a deportable noncitizen who had come to its attention—was primarily used to grant a reprieve to those facing immediate removal. With DACA, for the first time, the government began proactively offering protection from deportation to a select group of unauthorized immigrants—based on criteria including age, year of U.S. entry, educational attainment, military service, and lack of a serious criminal history—whether they had ever come to the government’s attention before or not.
After its announcement, the DACA program was implemented swiftly, providing critical protections to eligible Dreamers. Announced in June, the application period opened August 15, and within the first month, U.S. Citizenship and Immigration Services (USCIS) had accepted more than 82,000 applications for processing. The application process and documentation requirements were made simple enough that many applicants could apply on their own or with assistance from a nonprofit organization, instead of having to hire a lawyer. Since the program’s launch, USCIS has approved 835,097 initial applications—a number that includes some double counting of recipients who allowed their status to lapse for a year or more before reapplying. The Migration Policy Institute (MPI) estimates that 1.2 million unauthorized immigrants who entered the United States before age 16 and met the program’s other criteria were eligible to apply, suggesting that more than two-thirds of those eligible enrolled at one point or another during the past decade. As of December 31, the most recent figures provided by USCIS, 611,470 individuals held DACA status.
The Value of DACA
Since DACA’s implementation, a significant body of research has documented how the program has proved transformational for the lives of its beneficiaries, and in doing so, has benefitted the country overall. DACA’s protections, which include the ability to work legally, with access to Social Security numbers and driver’s licenses, eased what had been difficult transitions to adulthood for the estimated 98,000 unauthorized immigrants who graduate from U.S. high schools each year. As they approach adulthood, Dreamers without DACA protections face hardships due to their lack of ability to work legally and the fact that any involvement with law enforcement or other government officials could potentially shunt them into the deportation pipeline. As a result, despite fluent English skills, cultural competence, and sometimes even a college degree, many Dreamers without DACA have taken low-wage jobs in the informal sector, ending up on trajectories similar to those of their unauthorized immigrant parents.
DACA eased many of those challenges. DACA holders live without the immediate threat of deportation, they can invest in their education and training knowing that lawful employment in higher-paying jobs is open to them, and in many states, DACA has also brought easier access to college through eligibility for in-state tuition or even state financial aid. The program was designed to incentivize educational attainment, because a high school diploma (or equivalent) or school enrollment is a precondition for eligibility. Not surprisingly, DACA has increased high school attendance and graduation rates for unauthorized immigrant youth. Similarly, it also incentivizes military enrollment because service and honorable discharge from the armed forces provides an alternate path to eligibility.
DACA also has improved recipients’ employment outcomes. It has increased the labor force participation rates of those who are eligible, decreased their unemployment rates, and boosted earnings for those with the lowest incomes. MPI’s analysis of the characteristics of active DACA holders showed that by 2014, DACA holders were much more likely than their peers without DACA to work in “inside” jobs such as office support and were much less likely to work in “outside” jobs such construction. Amid the COVID-19 public-health crisis, many DACA holders have performed jobs essential to the pandemic response, including as health-care workers and in food-related industries. And because of their better jobs and higher incomes, DACA holders contribute more to the U.S. economy. By one set of estimates, DACA holders contribute nearly $42 billion to U.S. gross domestic product each year and add $3.4 billion to the federal balance sheet.
More generally, in surveys, DACA holders have reported that deferred action allowed them to secure jobs with higher pay, earn professional licenses, open bank accounts, buy cars, and obtain better housing, including by purchasing a home. DACA holders have said they can better support their families in myriad ways, contributing financially, providing transportation, and serving as intermediaries with formal institutions that had previously been intimidating.
DACA has had positive health impacts as well, for example increasing health insurance coverage rates and rates of reliance on a stable source of health care. The program also has been credited with improving the mental health of beneficiaries. And benefits extend to DACA holders’ children as well. DACA holders have fewer low-birthweight babies than their peers without DACA, and their young children show improved mental-health outcomes.
The benefits of legal protections may be most direct for Dreamers compared to other groups that may be offered legal status, given they were raised in the United States, with U.S. education and training. Adding to evidence from the broad-scale legalization in the 1986 Immigration Reform and Control Act, the DACA experience suggests how extension of legal protections to other sympathetic subsets of unauthorized immigrants could transform lives, with long-term societal benefits.
A Precursor to Increased Use of Executive Actions
With the demonstrated success of DACA and in the face of congressional inaction on legislation resolving the status of the overall unauthorized immigrant population, 62 percent of which MPI estimates has lived in the United States a decade or longer, the Obama and Biden administrations opened discretionary, temporary legal statuses to some additional subgroups.
Most notably, the Biden administration has turned to the Temporary Protected Status (TPS) designation to expand protections to sizable segments of the unauthorized population. Authorized by Congress in 1990, TPS allows the Homeland Security secretary to designate for TPS countries that are undergoing armed conflict, the aftermath of a natural disaster or epidemic, or other extraordinary and temporary circumstances. Once designated, nationals of that country who had entered the United States before a specified cutoff date can apply for temporary protections, allowing them to stay and work lawfully in the United States. Countries are designated for TPS for six to 18 months at a time, though some countries, such as El Salvador, Honduras, and Nicaragua have had their TPS designations repeatedly renewed for more than 20 years now. When President Joe Biden took office, about 319,000 people had TPS. The Biden administration has newly opened TPS to more than 500,000 additional people through designations for Afghanistan, Cameroon, Myanmar, Ukraine, and Venezuela, and expanded access for nationals of Haiti, Somalia, South Sudan, Syria, and Yemen. The administration also has extended affirmative deferred action possibilities to applicants for U visas and for Special Immigrant Juvenile (SIJ) status, potentially extending temporary protections to another several hundred thousand individuals.
Despite these executive actions, the vast majority of the estimated 11 million unauthorized immigrants in the United States lack access to work authorization or protection from deportation. And while these forms of temporary protections offer a reprieve, their time-limited nature can dissuade some recipients from fully investing in their integration. DACA and TPS holders report a sense of living in two-year or 18-month increments, unsure if they can count on remaining in the United States long term. Such uncertainty complicates decisions around investment in education, taking a loan to purchase a home or start a business, or even in forming romantic relationships or having children. Not lost on the recipients is that programs created through executive action can be reversed by a subsequent administration. And the past ten years have also shown that nearly every executive action on immigration is now challenged in court.
DACA Under Threat
Despite the value demonstrated over a decade, DACA remains under threat of termination.
Months into his administration, Donald Trump attempted to end the program in September 2017 by barring new and renewal applications so that DACA holders’ protections would expire over time. The action was taken as a group of state attorneys general was threatening to sue the administration if it kept DACA in place, arguing that the program was unlawful, a position the Trump administration later asserted in its decision to terminate DACA.
DACA advocates brought various legal challenges to the termination of the program. They argued that the administration had not properly justified its decision and had not followed the necessary regulatory procedures to end a program relied upon by hundreds of thousands of recipients. The Supreme Court eventually ruled in the advocates’ favor in June 2020, keeping the program open to current recipients and allowing them to seek renewals but not permitting new applicants to apply. In December 2020 a federal district court reopened DACA to new applicants, including youth who had reached the program’s minimum age of 15 since September 2017 and people who newly met DACA’s educational or military requirements.
While the Supreme Court had weighed in on Trump’s authority to end DACA, no federal court ever ruled on the merits of the legality of the program’s creation until mid-2021. While Texas and a group of eight other Republican-led states in May 2018 followed through on their threat to challenge DACA’s existence, it took until July 2021 for U.S. District Judge Andrew Hanen in Texas to rule that the program’s creation exceeded the executive branch’s authority on immigration policymaking and further violated the Administrative Procedures Act because it had not met regulatory requirements. While Hanen stayed part of his decision in order to keep DACA alive for current recipients, he ordered the federal government to stop granting DACA to new applicants. This decision locked out around 80,000 first-time applicants who had applied after DACA was reopened to new entrants in December 2020 but whose applications remained pending due to slow USCIS processing.
The Biden administration has appealed Hanen’s ruling to the Fifth Circuit, which early next month will hear arguments in the case. Whichever way that court rules, its decision is likely to be appealed to the Supreme Court. The high court has articulated mixed outcomes in the realm of presidential authority related to deferred action. While it ordered the Trump administration to keep the DACA program alive, it showed less support for a similar deferred action program the Obama administration sought to create in 2014 to offer protections to the unauthorized immigrant parents of U.S. citizens and lawful permanent residents. Shortly after the Obama administration created the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, some Republican-led states quickly challenged the program’s legality. The states brought their challenge before Hanen, who blocked DAPA from going forward, arguing its creation exceeded executive authority. Hanen’s ruling was upheld by the Fifth Circuit, and eventually by a divided Supreme Court. Unlike DACA, the DAPA program never was implemented.
Even as the legal challenges to DACA have been winding their way through the courts, the Biden administration has taken steps to place the program on firmer legal footing. In September 2021, the administration published a proposed regulation to re-establish the program with its original eligibility criteria. The proposed rule would require separate processes to apply for protection from deportation and work authorization through DACA. This move is likely intended to address a part of Hanen’s ruling finding that DACA’s grant of work authorization and advanced parole differentiates the program from other forms of prosecutorial discretion that more clearly lie within the executive branch’s authority and have a long history of use. The administration has not yet issued the final version of this new regulation. Whether the new rule will be enough to convince the Fifth Circuit or the Supreme Court that the program is legally sound remains to be seen.
A Program Locked in Place
Since September 2017, the DACA program has only very briefly been open to new applicants, thus it is available only to those who have DACA protections now or had it at some point in the past. The uncertainty cast by the Trump administration’s attempted termination of the program initially led to growth in DACA participation but then a slow shrinking. As of September 2017, there were 689,800 active participants in the DACA program. By July 2021, that number had fallen to 590,070, before rebounding a bit to 611,470 by December 2021, the latest date for which data are available. Some of this attrition is due to the fact that about 76,000 DACA holders had been able to adjust to permanent resident status as of July 2019, the latest data available, mainly by having married U.S. citizens. Others likely have fallen out of the program possibly related to fear of giving current information to the government, the cost of renewal applications, emigration, or a possible disqualifying criminal conviction.
Figure 1. Number of Active DACA Participants, September 2017-December 2021
Note: Data on active DACA participants are not available prior to September 2017.
Source: U.S. Citizenship and Immigration Services (USCIS), “Count of Active DACA Recipients By Month of Current DACA Expiration,” various dates, available online.
Even if the program were to be reopened to new applicants, its eligibility requirements mean that it is now open only to those who entered the United States 15 or more years ago. As a result, most unauthorized immigrants aging into adulthood no longer meet even this basic threshold for DACA, and thus are experiencing the same educational, employment, and social challenges that Dreamers faced before DACA’s creation. If DACA were to be reopened, there are likely tens of thousands of individuals who could qualify either right away or after enrolling in a qualifying education program or obtaining a high school equivalency.
The Need for Stability
At its creation, DACA was seen as interim short-term relief in anticipation of more permanent congressional action. Many expected the program would demonstrate the benefits of giving Dreamers legal status, making the case for Congress to grant them more durable protections. At DACA’s tenth anniversary, the benefits have been proven and sympathy for Dreamers has continued, but Congress remains immobilized.
Congress has debated various versions of the DREAM Act since the first such bill was introduced in 2001. Despite bipartisan support for Dreamers among voters and members of Congress alike, the legislation has always fallen short of passing both chambers of Congress. In early 2018, following Trump’s effort to end DACA, lawmakers debated—though failed to pass—a number of measures related to Dreamers, ranging from legislation to continue DACA’s protections for current participants, to proposals to offer a path to citizenship to a much larger cohort of Dreamers. Over the past several years, the House has twice passed the Dream and Promise Act, which would grant a path to permanent residence to a sizable group of Dreamers and TPS holders; the Senate did not consider the bill.
Litigation that has kept DACA alive has relieved Congress of the pressure of negotiating any compromises and tradeoffs that would be necessary to enact legislation related to Dreamers. The fate of Dreamers may once again land in the hands of the Supreme Court, but ultimately only Congress can provide a durable legal status, not only to Dreamers but potentially to other sympathetic segments of the unauthorized population.
If the Supreme Court declares the DACA program unlawful, Congress could face immense pressure to finally act.
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