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Republicans are misleading everyone — including themselves — about how long they have to fix DACA

How the DACA deadline actually works — and why Trump and Congress can’t just punt on it.

DREAMer Protestors Flood Hart Senate Office Building Mark Wilson/Getty Images

Congress is moving to clear off most of its urgent business before leaving for the holidays, with one exception: a bill that would address the 690,000 unauthorized immigrants protected from deportation under the Deferred Action for Childhood Arrivals program.

GOP leadership has refused to concede it was a priority. And Democrats — for whom a DACA fix once seemed important enough to withhold votes on key spending bills, potentially risking a government shutdown on Friday — appear to be backing down.

So if DACA doesn’t need to be taken care of now, when does Congress need to act on it?

Ask Sen. Jeff Flake (R-AZ), one of the Republicans who’s been pushing to legalize DACA recipients, and he’ll tell you mid-January — in advance of yet another funding deadline, and the timeline he claims he’s gotten the office of Senate Majority Leader Mitch McConnell (R-KY) to agree to for a vote.

Ask McConnell himself, though, and he’ll say they don’t need to address it before March 5. That’s six months after the Trump administration announced it was winding down the program, and the date President Trump said was the deadline for Congress to act.

Ask Senate Majority Whip John Cornyn (R-TX), meanwhile, as a reporter did Monday, and he might suggest that if Congress didn’t have a deal by March 5, “the president could extend the deadline if he chose to do so.” Given how lackadaisical Congress tends to be toward deadlines, the fact that Cornyn is already floating that possibility is a serious indication that Republican leadership doesn’t really see a need to move forward by March 5.

But what he said is not true. It’s just not how the policy works.

DACA protections can’t just be extended on a whim. They have to be renewed every two years — and the renewal process takes time. Because of the way the administration has implemented the end of DACA, thousands of immigrants already lost their DACA protections even before the March 5 “deadline.”

It’s become extremely clear that immigrants who fall into the gaps — even when, in theory, the government thinks they ought to qualify for DACA — are as vulnerable to deportation as anyone else.

The March 5 “deadline” may have been an arbitrary date when the administration picked it in September. But it can’t be endlessly deferred. Democrats (and some moderate Republicans) are taking a sensible position when they insist on action to protect DACA recipients as soon as possible.

Protections under DACA don’t auto-renew — and the administration has stopped letting people apply for renewals

When Democrats say that the March 5 deadline is artificial, they’re referring to the fact that immigrants are already losing their DACA protections: as many as 122 a day, according to estimates from the Center for American Progress, or 22,000 between September 5, 2017 (the day the Trump administration announced it was ending DACA) and March 5, 2018.

DACA protections aren’t indefinite. They lasted for two years at a time, and immigrants had to reapply for a renewal before those two years expired.

When the Trump administration said it was ending DACA “on March 5,” what it really meant was that no immigrant whose current work permit expired on March 5 or later would have the opportunity to reapply. But immigrants whose work permits were set to expire between September 5 and March 5 were given only a month to reapply — and 22,000 of them missed that deadline.

Many of the immigrants who missed the reapplication deadline had submitted their applications on time, but, as Vox reported, were subjected to mysterious weeks-long mail delays and to the government’s refusal to accept some applications that were in its mailboxes at the deadline.

The government is giving them another chance to reapply. But that’s exactly the point: Even when the government admits that an immigrant’s DACA application shouldn’t have been rejected, it has to make that immigrant reapply, rather than just magically extending her protections.

Starting March 5, the 122-a-day pace of immigrants losing DACA protections and work permits will accelerate radically. A conservative estimate suggests that 976 DACA grants would expire daily; a more aggressive estimate, from the immigration advocacy organization, says that 1,700 immigrants will lose DACA each day between March 5 and November 5.

That will happen regardless of what anyone in Congress or the White House says, because there is literally no way for any immigrant whose DACA protection expires on March 6 to renew.

The Trump administration can’t just extend the March 5 deadline by saying it has extended it. It would have to direct US Citizenship and Immigration Services to start allowing immigrants whose DACA is set to expire this spring to renew their work permits. Given that even under normal circumstances it took about 90 days for the government to process DACA applications, the administration would have to announce that ASAP — and even then, it’s entirely likely that some immigrants would end up with a gap in their protection.

If you don’t have a current DACA grant and work permit, you are at risk of deportation

Because the immigrants who are protected by DACA are the sort of people who most of the American public wants to stay in the US — they were raised here, they speak fluent English, they’re employed and supporting families — it would be easy for politicians to assume that they’re not at much risk of deportation anyway. After all, the Trump administration claims it’s targeting “bad hombres” and members of MS-13.

But being someone who “ought to” stay in the US, or even someone who ought to be covered by DACA, simply doesn’t matter if you don’t actually have the paper in hand.

Any day without DACA is a day in which working is illegal. In most states, it’s a day in which driving to work is illegal (since many states gave drivers’ licenses to immigrants that were contingent on them having DACA).

It’s a day in which simply existing in the US is liable to get you picked up by ICE agents, detained, and slotted for deportation.

This isn’t a theoretical statement. It’s a description of current ICE policy.

At least one immigrant, Osman Enriquez of Pennsylvania, has been arrested by ICE while waiting to be allowed to reapply for his DACA protections. Enriquez was released from detention last week, apparently (at least in part) thanks to public attention being paid to his case. But the government didn’t drop its immigration court case against him; he is still in legal proceedings that could lead to his deportation.

We don’t know if there are other immigrants who have been arrested after their DACA protections have expired in the past few months. But the more immigrants lose DACA, the more inevitable it becomes that some of them will be picked up.

And if Enriquez — who government policy had said would be able to reapply for his DACA renewal as soon as he got instructions about how to do it — is still considered deportable, it’s really hard to imagine that the government will act more leniently in April toward someone whose DACA protection ended March 6 and never even had a chance to renew.

If the March 5 deadline is meaningless, Democrats are right

In theory, the point of the March 5 DACA “deadline” was to light a fire under Congress to get it to act on something that Trump administration officials like chief of staff John Kelly think it ought to have addressed long ago. But Congress isn’t really motivated by deadlines. It either finds ways to kick them down the road (as with raising the debt ceiling or funding the government), or simply ignores them.

As of this writing, the Children’s Health Insurance Program has been unfunded for 80 days. Some states have already had to shut down their programs. Others have sent letters to families warning that they’re about to lose coverage.

Eighty days after March 5 would be enough time for 78,080 immigrants to lose their DACA protections. Add in the 22,000 who will have lost DACA before March 5, and we’re talking about 100,000 immigrants.

And while CHIP can be easily restarted once Congress reauthorizes the funds for it, Congress can’t just decree that those 100,000 immigrants get protections again. It is a policy process that is outside of their control.

To a certain extent, this is an argument that the March 5 deadline itself is arbitrary — pass a bill at midnight on March 4, and it’s still extremely plausible that thousands of immigrants will end up with protection gaps while the bill goes into effect. But that seems less like an argument for waiting longer than it does for acting more quickly.

If Republicans really think that there’s no need to take the March 5 deadline seriously, they should consider that maybe Democrats were right the first time — that the only deadline is to address the fate of DACA recipients as quickly as possible.

And the Democrats who say a DACA fix is important, but not important enough to shut down the government over, need to decide what their deadline actually is.