E.g., 12/13/2019
E.g., 12/13/2019

Will Supreme Court Ruling on DACA Finally Force Congress to Break the Ice on Immigration Reform?

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Will Supreme Court Ruling on DACA Finally Force Congress to Break the Ice on Immigration Reform?

DACA rally in front of Supreme Court

A rally outside the Supreme Court during oral arguments in the DACA case. (Photo: Victoria Pickering)

The Deferred Action for Childhood Arrivals (DACA) program has embroiled all three branches of government since its creation in 2012, with each branch hoping the other would bail it out of a politically sensitive issue: How to address the fate of a population widely seen as sympathetic across the partisan divide. Created by Obama administration executive action amid persistent inaction by Congress over the fate of unauthorized immigrants brought to the United States as children, DACA was in effect until September 2017, when the Trump administration announced its intention to terminate the program and end work authorization and protection from deportation for DACA recipients.

The ping ponging between the executive, legislative, and congressional branches came a step closer to ending last week, when the Supreme Court heard arguments to determine the legality of the Trump administration’s decision to kill DACA. The court’s decision, expected sometime next spring or early summer, will bring some closure to the jockeying among the branches, but will land smack in the middle of a politically charged presidential campaign. As divisive as the verdict will be, it could finally force Congress to address the plight of DREAMers, whose status has been an episodic but never concluded preoccupation for legislators since the first version of the DREAM Act was introduced in 2001.

DACA shielded more than 800,000 immigrant youth from deportation before the Trump administration’s move on September 5, 2017, to wind the program down over six months. Defending the termination, President Trump suggested the program’s end would give Congress time to legislate relief for DREAMers. Congress, however, has failed for two decades to enact such protections—or pass any major immigration bills during this administration. In the absence of congressional action, various federal courts blocked the administration from ending the program, setting the stage for the Supreme Court review.

At the Supreme Court oral argument last week, there was a remarkable consensus—publicly acknowledged by both parties in the case—that the administration has the authority to end the program as a matter of policy. So the justices quickly focused on two central questions: whether the court could review the executive branch’s decision to end DACA, and whether the administration’s defense of the termination was legally sufficient. While the justices’ reactions during arguments are an imprecise indicator of how they will rule, it appeared that at least four of the five traditionally conservative judges were willing to give deference to the administration’s position, and the four others who are traditionally liberal were not. Thus, as in many high-profile cases, the vote of the chief justice is likely to be the critical one.

But whatever the final decision, its timing in the middle of the presidential campaign could not only have an impact on the general election but also provide the motivation for Congress to act. In fact, two bills making their way through Congress—the Fairness for High-Skilled Immigrants Act and the Farm Workforce Modernization Act—suggest there may be a narrow opening for bipartisan approaches to immigration.

A Divided Court Hears the Arguments

For its review, the Supreme Court consolidated three DACA cases that emerged from three different appellate courts: Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal. In its brief, the administration maintained that the courts should not review the Department of Homeland Security (DHS) decision to terminate the program because administrative agencies have broad discretion to decide how to exercise their enforcement authority. And second, even if it is reviewable, the administration argued DHS provided sufficient grounds to terminate DACA, including that the program itself was unlawful because it offered legal protections to a broad class of individuals not otherwise provided for in immigration law—which can only be accomplished by an act of Congress.

The administration further argued that DACA had to be terminated because it was unlawful in light of a June 2016 Supreme Court decision that, by a 4-4 split vote, kept in place a Fifth U.S. Circuit Court of Appeals ruling holding another Obama administration program similar to DACA (the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA) “unlawful.”

For their part, attorneys representing DACA recipients argued that DACA is distinguishable from DAPA, which never took effect: DACA is a live program, with about 661,000 current beneficiaries whose lives would be upended, with major consequences for themselves, their families, their communities, and the economy. The plaintiffs’ attorneys, one of whom is himself a DACA recipient, charged that termination of DACA was arbitrary and capricious, and therefore unlawful under the Administrative Procedures Act, since DHS failed to provide an adequate policy or legal justification for its termination or consider the impact such a policy change would have on DACA recipients. Further, they argued that ending DACA did not represent an ordinary exercise of discretion, since it impacted a “whole class” of recipients rather than individuals. Thus, they said, the program could not be ended without an adequate and a reasoned explanation, instead of the “barebone” conclusory assertions provided by the administration.

Finally, in a pointed reference—perhaps aimed at the one-person audience of Chief Justice John Roberts—plaintiffs’ lawyers reminded the court that, earlier this year, it had similarly ruled against the administration on the inclusion of a citizenship question on the census form because it found the government’s explanation for doing so “contrived” and accordingly not credible.

Possible Court Outcomes

If the Supreme Court upholds DACA, those eligible would breathe a sigh of relief—and so would Congress. For the House and Senate, any immediate pressure to pass legislation to protect DREAMers would be lifted. While Congress has made several attempts since September 2017 to pass bills that would offer permanent protections for DREAMers (and members from both sides of the aisle have often publicly expressed support for DREAMers) legislation has eluded them so far.

The House passed the American Dream and Promise Act in June 2019, but with mostly Democratic votes—just seven Republicans voted for the legislation, which would offer a pathway to legal status for a larger group of DREAMers as well as immigrants with other temporary statuses (such as Temporary Protected Status, TPS) that have been scheduled for termination by the Trump administration. The Migration Policy Institute (MPI) estimates the Dream and Promise Act could put just under 2.7 million immigrants on a path to legal residency.

Yet if the Supreme Court allows DACA to continue, it is unlikely that bills such as the Dream and Promise Act would move forward. An attempt to move such legislation forward could energize the Democratic base during a presidential campaign, giving Republicans little reason to cooperate.

On the other hand, if the Supreme Court allows DACA to die—a more likely outcome considering the high court’s recent pattern of deferring to executive authority on immigration—the pressure on Congress to act would mount. Legislators would be confronted with the prospect that young people who have lived most of their lives in the United States would face deportation. Trump, who has at times spoken of DREAMers with warmth and at others referred to them as “hardened criminals,” and Republicans on Capitol Hill would have to reckon with what to do if the ball lands in their court.

One possibility for Republicans: Whether providing long-term protections to DREAMers should be leveraged to extract additional immigration enforcement concessions from Democrats. While the absence of DACA protections could make Democrats more energized than ever to pass DREAM Act-type legislation, their enthusiasm could be dampened by GOP demands.

In recent years, every time legislation has been put forward to provide protections to DREAMers, Republicans have insisted on including enforcement provisions that Democrats cannot support. Similarly, many Democrats have been resistant to voting for immigration bills that include any enforcement provisions, or that lack provisions limiting enforcement. In finding a compromise, members of Congress will likely consider legislative options that range from providing interim relief—essentially codifying DACA, with no path to permanent legal status—to approaches that would include broad and permanent relief, leading to a green card and eventually citizenship.

In the process, if such negotiations are successful in breaking the ice in the frozen immigration landscape and rebuilding trust among members of Congress on a piece of legislation, it would certainly be a welcome sign for a compromise on broader immigration reform.

Is Congressional Action Possible?

Skepticism over Congress’ ability to act in a bipartisan manner to provide legal protections for DREAMers is understandable. After all, despite public expressions of sympathy and concern, the House and Senate have failed since 2001 to get on the same page to enact such protections, though DREAM legislation has periodically passed each chamber. And Congress has passed virtually no immigration bills under this administration, except for provisions inserted into appropriations packages. But could an urgent need to address the fate of DREAMers, driven by a hard deadline when DACA holders would start to lose all protections, provide the opening to break the deadlock?

Indeed, two current bills on different immigration issues and at different stages of the legislative process may show a pathway to action. The Fairness for High-Skilled Immigrants Act passed the House in July with strong bipartisan support from 224 Democrats, 140 Republicans, and one Independent. The bill would remove the caps that prevent nationals of any one country from receiving more than 7 percent of all employment-based immigrant visas each year, lessening the decades-long backlogs that have affected nationals from India and China in particular. The legislation remains stalled in the Senate, though has both widespread bipartisan support and opposition, indicating there may be a chance for real compromise that is driven less by ideological positions.

The second bill, the Farm Workforce Modernization Act, was recently introduced in the House by a bipartisan group of 23 Democratic and 21 Republican original sponsors. It would offer a pathway to legal status for certain agricultural workers while also requiring the use of E-Verify across the agricultural sector. While it is too soon to know the bill’s prospects in the House, much less its fate in the Senate, significant opposition has yet to emerge.

Of course, in more recent years, none of the proposed DREAM bills, including the House-approved Dream and Promise Act, have garnered the same level of bipartisan support as these other two other bills. But DREAMers have certainly drawn bipartisan support in the past. Therefore, there is a possibility that the urgency of expiring protections in the wake of a Supreme Court ruling favoring the administration may reignite bipartisan support, albeit more likely for a measure less expansive than the Dream and Promise Act.

National Policy Beat in Brief

USCIS Proposes Major Fee Increases, Narrows Fee Waiver Criteria. On November 14, U.S. Citizenship and Immigration Services (USCIS) published a set of proposed fee increases that would dramatically raise the cost of applying for many immigration benefits. Most notably, the proposal includes a $50 fee for asylum applications filed with USCIS—which would make the United States one of only four other countries to charge for asylum, joining Australia, Fiji, and Iran. USCIS estimates 160,000 people will apply for asylum in fiscal year (FY) 2020. Under the proposal, asylum seekers would also have to pay $490 to apply for work authorization while their case is pending—currently, they are exempt from the initial application fee, and have to pay only if they want to renew their employment authorization document after two years. Elsewhere, naturalization application fees would rise by 83 percent, from $640 to $1,170. Last time USCIS fees were raised, in 2016, the naturalization fee increased 8 percent. Additionally, recipients of Deferred Action for Childhood Arrivals (DACA) would have to pay $765 to renew their protections, compared with $495 currently. These fee increases are partly meant to offset a potential transfer of $207 million from USCIS to U.S. Immigration and Customs Enforcement (ICE), which would fund enforcement initiatives related to naturalization and adjudications.

The proposal would also eliminate the option to apply for waivers for most application fees, including those for naturalization and employment authorization. In the limited set of cases in which USCIS is statutorily required to consider requests for fee waivers, a narrower set of criteria will determine which applicants are eligible. Applicants’ income would have to be 125 percent or less of the federal poverty guidelines, whereas currently the limit is 150 percent. Additionally, fee waivers would be considered only for asylees, refugees, and in cases related to national security, emergencies or major disasters, U.S. agreements with other countries, and USCIS errors. These changes come on the heels of a separate October 25 announcement that as of December 2, an applicant’s receipt of means-tested public benefits will no longer be considered as a factor in whether he or she is eligible for a fee waiver.

Federal Judge Temporarily Blocks Health Insurance Requirement for Potential Immigrants. On November 2, a federal judge in Oregon temporarily blocked (for 28 days) President Trump’s October 4 proclamation requiring all new potential immigrants to either have health insurance or demonstrate financial means to meet their reasonably foreseeable health costs. The judge found that the challengers—including U.S. citizens whose family members are immigrants or potential immigrants who would be subject to the proclamation—were likely to succeed in arguing that immigration law does not permit the government to deny admission to immigrants solely based on whether they have health insurance. The judge also determined that it is likely that most of the health insurance options that would be accepted under the proclamation are inaccessible to the challengers. The judge set a November 22 hearing to determine whether to issue a preliminary injunction, which could remain in effect longer than the current temporary restraining order.

Federal Judge Requires U.S. Government to Provide Mental Health Services to Separated Families. On November 5, a federal judge in the Central District of California ordered the U.S. government to provide mental health care to all parents and minor children who entered the United States on July 1, 2017 or later, and were, are, or will be separated during the parent’s detention in Department of Homeland Security (DHS) custody, without a finding that the parent is unfit to care for the child. The judge found that the plaintiffs in the class-action suit would likely succeed in arguing that the government was “deliberately indifferent to the mental health risks presented by the family separation policy and did not take reasonable steps to avoid or address them,” and that the government placed these families in danger “they would not otherwise have faced.” Under the court’s preliminary injunction, the government must make mental health screenings available to those detained and those who have been released, and, based on the results of those screenings, provide ongoing mental health care to detained parents who need it, and transitional care to released parents who need it (until they can find another health-care provider).

DHS Implements Two Pilot Projects to Speed Asylum Screenings at U.S.-Mexico Border. During the past month and a half, DHS put into place two nearly identical pilot programs in El Paso, Texas, that aim to provide decisions within ten days on whether migrants seeking asylum in the United States can proceed with their claims. The Prompt Asylum Claim Review (PACR) program is aimed at migrants subject to the transit-country asylum ban, which makes ineligible for U.S. asylum migrants who arrive at the Southwest border after passing through a country other than their home country, without applying for asylum and receiving a final denial in that transit country. Migrants have one day to call a lawyer or family members and prepare a claim that they would be persecuted if returned before undergoing a credible-fear interview. Due to the transit-country asylum ban, these migrants would be denied credible-fear determinations—the first step in the asylum process—and instead would have to demonstrate a reasonable fear of persecution, showing it is more than likely they will be persecuted upon return to their country of origin. This is a higher standard than credible fear. If they are denied the reasonable fear determination as well, they can appeal to an immigration judge via a telephonic hearing.

The second pilot program, the Humanitarian Asylum Review Program (HARP), is essentially the same, but it is aimed at Mexican families, who are not subject to the transit-country asylum rule and thus may be eligible for asylum. Recently, Mexican families have been making up an increasing share of asylum seekers arriving at the U.S.-Mexico border; between July and October, the number of Mexican families apprehended crossing the border illegally rose 85 percent, while the number of families from El Salvador, Guatemala, and Honduras fell at least 75 percent for each nationality.

Chad Wolf Named Acting DHS Secretary. Chad Wolf was named the new acting Homeland Security secretary on November 13, taking the place of Kevin McAleenan. Wolf was only able to be named to the position after the Senate confirmed him as undersecretary for policy, which it did earlier that day, in a 54-41 vote mostly along party lines. Previously, he had not been Senate-confirmed for any position. Wolf is the fifth Homeland Security secretary of Trump’s presidency, and the third acting secretary. On November 14, Wolf named Ken Cuccinelli as his deputy, elevating him from acting director of USCIS. 

Proposed Rule Would Remove DNA Collection Exemption for Immigration Detainees. On October 22, the Justice Department proposed a rule that would broadly expand government collection of detained immigrants’ DNA. The rule would change the government’s implementation of a 2005 law requiring federal agencies to collect DNA from arrestees. A 2008 regulation implementing that law allowed the Homeland Security secretary to exempt noncitizens from this requirement because of resource constraints, which she did in 2010. The Justice Department is now arguing that those resource constraints no longer exist, as DNA collection has become “routine.” The comment period on the proposed rule ended on November 12, and the Justice Department will now review comments before publishing a final rule. If implemented as is, the rule would require DHS to eventually collect DNA from all noncitizens it detains, whether at the border or in the interior, though it does not apply to people entering the country legally who might be briefly detained for secondary inspection. It also does not apply to permanent residents entering the country.

Barr Blocks Avenues for Deportation Relief. On October 25, Attorney General William Barr issued two opinions that narrow some possibilities for relief in immigration court. In the first, Matter of Castillo-Perez, Barr found that an immigrant with two DUI convictions would generally not qualify as someone with “good moral character,” a requirement for many types of relief under immigration law, including cancellation of removal and naturalization. In the second, Matter of Thomas and Thompson, Barr concluded that state courts’ actions to vacate, modify, or clarify past state convictions of noncitizens should generally not alter their eligibility for immigration relief.

Poland Added to Visa Waiver Program. On November 6, then-Acting Homeland Security Secretary Kevin McAleenan added Poland to the Visa Waiver Program (VWP), allowing Polish nationals to apply to visit the United States for up to 90 days without a visa, beginning November 11. Poland becomes the 39th country to be included in the program. In order to be considered for the VWP, the country’s rate of U.S. visa refusals must be less than 3 percent, a hurdle which Poland cleared in 2019.

State and Local Policy Beat in Brief

Iowa Supreme Court Allows Consideration of Immigration Status in Deciding Some Criminal Sentences. On October 18, the Iowa Supreme Court ruled that state courts may consider defendants’ immigration statuses in issuing sentences “to the extent immigration status affects an otherwise relevant sentencing factor.” In the case at issue, an unauthorized immigrant had been sentenced to ten years in prison when, his lawyers argued, he would have been considered for probation if he had been a U.S. citizen. But the opinion noted that his probation would have taken place in Mexico, since he would have been deported, and it would not be possible to monitor such probation, so he essentially would have escaped the consequences of his sentence. The court also pointed out that state appeals courts in California; Colorado; Georgia; Oregon; and Washington, DC (and the Nebraska and Nevada Supreme Courts) had previously ruled along similar lines to its ruling.

Arizona City, Maryland County Turn Away from “Sanctuary” Policies. On November 6, voters in Tucson, Arizona, rejected a ballot measure that would have put in place policies limiting cooperation with U.S. Immigration and Customs Enforcement (ICE). Among other provisions, the measure would have limited the instances in which local law enforcement could ask people about their immigration status; required local officers to document any request for immigration status information they made to ICE; and prohibited joint operations with federal law enforcement officers in the absence of a memorandum of understanding with the relevant federal agency that prohibits warrantless arrests.

Montgomery County, Maryland, also recently took a step back from its policies limiting cooperation with ICE, which are more extensive than Tucson’s would have been. For example, the county’s policy, codified in a July 2019 executive order, prohibits local law enforcement from requesting immigration status information from ICE unless required to do so by court order and from complying with ICE requests (known as detainers) to local jails to hold someone for pickup by the agency. The county executive in late October, however, rescinded a portion of the order that prevented ICE agents from entering nonpublic areas of the county jail to take people released from jail into custody. This comes after a series of high-profile cases—some highlighted by the White House—of unauthorized immigrants being arrested in Montgomery County for rape and sexual assault over the summer.

Las Vegas Suspends 287(g) Agreement, Stops Honoring Detainers. The Las Vegas Metropolitan Police Department on October 22 suspended its 287(g) agreement with ICE, which allows jail officers who receive training to be deputized as immigration officers. These officers take on responsibilities such as determining the removability of those detained in the city jail and issuing warrants and detainers. The department also stopped complying with detainers issued by ICE. It decided to change its policies following a federal court ruling in California that found ICE could not issue detainers when a state law did not authorize their use, and could not issue them based solely on data from unreliable federal databases. The court in California does not have jurisdiction over the Las Vegas police department, but the department may be reacting to the possibility of future similar court challenges.