The Trump administration just offered explicit assurance to more than 750,000 unauthorized immigrants protected from deportation from the Obama administration: The DREAMers are going to be able to remain protected, and able to work legally in the US, for the foreseeable future.
But the foreseeable future may not be that long.
Homeland Security Secretary John Kelly issued a memo Thursday night stating that the Deferred Action for Childhood Arrivals program launched by President Barack Obama in 2012 — which granted renewable two-year protections from deportation to unauthorized immigrants who’d come to the US as children and met other requirements — would remain in effect.
It was the first official statement of policy from the Trump administration on a program the president has openly waffled on whether or not to keep.
But apparently, he’s still waffling, and could change his mind. The Department of Homeland Security’s assistant secretary for public affairs told the New York Times on Friday morning that “there has been no final determination made about the DACA program,” and didn’t offer any sort of timeline for when a final determination might be made.
Trump often on the campaign trail that he’d rescind all of the “unconstitutional executive orders” signed by President Obama. It was widely assumed that the DACA program, which was often mischaracterized as an executive order and which most immigration hawks felt was unconstitutional, fell into that category. Some anti-immigration groups were losing patience with Trump for not ending DACA sooner — and now, he’s made it (at least for the moment) the official policy of his administration.
The announcement about DACA was an apparent afterthought in the memo. Its ostensible purpose was to officially rescind an Obama memo that was never actually put into place: the much broader Deferred Action for Parents of Americans (DAPA) program, which was announced in 2014 but was put on hold by the courts before it could be implemented. (DAPA would have granted the same protections and work authorizations to parents of US citizens that DACA did to DREAMers.)
Officially rescinding DAPA doesn’t strip protections from anyone. And keeping DACA in place, if anything, might reinforce the protections that already existed. But by continuing to protect DREAMers, the Trump administration is drawing a bright line between them and all other unauthorized immigrants. DACA recipients might be safe, but everyone else — no matter their circumstances — is at risk.
Trump was expected to kill DACA. If anything, the latest lease on life might make its protections slightly stronger.
One of the biggest questions facing Donald Trump after winning the presidency was whether he would end the DACA program — taking hundreds of thousands of immigrants who had been working legally in the US for several years, and pushing them back into the shadows. (Or, worse, using the information in their DACA applications to track them down and deport them.)
Initially, it didn’t look good for the immigrants. Trump’s plan for his first 100 days promised to “cancel every unconstitutional executive action, memorandum and order issued by President Obama.”
An executive order was drafted (and leaked to Vox.com shortly after the inauguration) that would have stopped immigration officials from granting new protections to anyone under the program, and stopped existing beneficiaries from renewing their protections once their current two-year grants were up.
But even after Trump moved aggressively on immigration in his first week in office, he didn’t sign that order. And his public comments — which openly waffled between the need to be “tough” and protestations that the president had a “big heart” — made it clear that there was some ambivalence in the White House about stripping protections from people who, for the most part, had grown up in the US.
The Department of Homeland Security said that DACA remained in place. It kept processing applications for it. The program seemed to be running on autopilot. The anti-immigrant group ALIPAC withdrew their endorsement of Trump in May for not ending DACA quickly enough.
Now, it has officially become the policy of the Trump administration. For now.
“The June 15, 2012 DACA memorandum,” Secretary Kelly wrote in a memo on Thursday, “will remain in effect.”
An FAQ on the DHS website makes the meaning unmistakably clear: “DACA recipients will continue to be eligible as outlined in the June 15, 2012 memorandum,” and current DACA recipients will continue to be eligible for two-year extensions.
But the Trump administration doesn’t want people to think that it’s actually clearing up the question of what’s going to happen to DACA recipients. Administration officials told the Times that the point of it was just to clarify that while DAPA was dead, DACA wasn’t yet.
The lack of clarity is likely to perpetuate the psychological uncertainty DACA recipients have been under since last November.
Protecting DACA on paper is one thing. Protecting it in practice is another. DACA recipients under Trump haven’t just been anxious because the program itself might get killed; they’ve been worried about reports of Immigration and Customs Enforcement (ICE) or Border Patrol agents picking up immigrants who were supposed to be protected by DACA, and moving to strip their DACA protections to deport them.
In Seattle, Daniel Ramirez Medina was arrested when ICE agents, who had come for his father, entered his home. Authorities proceeded to argue that they could deport Ramirez, because he was a gang member (something Ramirez vehemently denies) and therefore violated the terms of his DACA protections. In California, Juan Manuel Montes claimed he was deported by Border Patrol agents who didn’t allow him to get his DACA papers — then was caught and formally stripped of DACA when he tried to return. In Atlanta, Jessica Colotl was denied a renewal of DACA based on a criminal charge from 2011 (before she got DACA in the first place) that stemmed from a traffic stop.
But the Trump administration’s new guidance appears to imply that the practice of stripping DACA protections ad hoc is going to come to an end. “No work permits will be terminated prior to their current expiration dates,” the DHS website says.
If this actually means that field immigration agents will no longer be able to try to strip people they encounter of DACA protections, that’s huge. It would be the first indication that the Trump administration — whose philosophy of immigration policy is that field agents shouldn’t have anyone telling them how to do their jobs — does, in fact, believe that Washington has some authority to tell ICE agents what they can and can’t do.
But the Trump administration doesn’t appear interested in offering those kinds of assurances. After all, it doesn’t want DREAMers to feel too confident that DACA will last at all.
The Trump administration officially rescinded a memo that was already dead-letter
If the Deferred Action for Parents of Americans program had been allowed to go into effect in 2015, as it was scheduled to do, it would have allowed unauthorized immigrants who had US-citizen or permanent-resident children under the age of 18 (and who’d been in the US for a certain amount of time) to apply for protection from deportation. It could have ended up protecting nearly 4 million unauthorized immigrants and allowing them to work in the US legally.
But it never ended up protecting any of them. A coalition of Republican state governments, led by Texas, sued the administration arguing that DAPA was unconstitutional. In February 2015, a federal judge blocked the administration from moving forward with the program — saying that DAPA could well be unconstitutional, and they’d better put it on hold while he considered the merits of the case. (This move, which is called a preliminary injunction, might be familiar if you’ve been following the Trump administration’s travel ban — it’s the same move that’s kept that ban on hold so far.)
The injunction also prevented the Obama administration from expanding the length of a DACA grant from two years to three years; the administration ultimately had to tell several immigrants who’d been issued three-year DACA grants due to legal confusion that they had to return their work permits and get new, two-year ones.
The Fifth Circuit Court of Appeals upheld the injunction. And in a 4-4 split in June 2016, the Supreme Court failed to overturn the circuit court — meaning the injunction would remain in place indefinitely, until Judge Andrew Hanen issued his final ruling in the case.
When President Trump won the election, it was widely assumed DAPA was dead. Presidents don’t tend to spend Justice Department resources trying to implement policies of their predecessors that they’ve called unconstitutional. But the Department of Justice punted for several months.
By mid-June of 2017, they were facing an imminent deadline from Judge Hanen to fish or cut bait. So on June 15, Secretary Kelly issued a memo formally rescinding the DAPA program, creating an opportunity for the DOJ to try to wind down the lawsuit in Hanen’s court.
Immigrant parents of US citizens have been vulnerable to deportation for months
The courts are the only place that DAPA ever actually lived. It was never put in place; no immigrants were ever protected under the program. But in the last two years of the Obama administration, it was still pretty unlikely that an immigrant who would have benefited from DAPA would get arrested and deported — because it was unlikely that any immigrant who’d lived in the US for years and didn’t have a criminal record would be arrested and deported.
That policy shift was the result of a memo that was rolled out in November 2014, along with the DAPA proposal, setting stricter guidelines for who Immigration and Customs Enforcement agents could prioritize for deportation. The prioritization memo wasn’t challenged in court. And it resulted in a sharp drop in deportations from the interior of the US over the last two years of Obama’s term.
Trump changed that policy almost immediately after arriving in office. On January 25, in an executive order, he rescinded all policies that dictated when ICE agents should use “prosecutorial discretion” to refrain from deporting unauthorized immigrants.
Administration officials have made it clear time and again that all unauthorized immigrants are subject to deportation. At a House hearing on Tuesday, the acting director of ICE spoke directly to people “in this country illegally”: “You should be uncomfortable. You should look over your shoulder, and you need to be worried.”
The rhetoric appears to be a little more aggressive than the reality. For the most part, people who have gotten arrested and put in deportation proceedings by ICE have been people already known to the federal government — because they have criminal convictions (often minor or long-past), were deported in the past and returned, or had pending ICE cases that had been put on hold because they were “low priorities” under Obama.
The Trump administration isn’t yet launching broad and indiscriminate sweeps. But they want immigrants, including those who could have been protected by DAPA, to know that it’s a possibility.
Obama saw immigrant worthiness as a spectrum. Under Trump, it’s a bright line — with fear on both sides.
There’s a reason that DACA was allowed to go into effect while DAPA was challenged in court. The people protected by DACA — the “DREAMers” — are often the most sympathetic unauthorized immigrants. They’ve grown up in American schools, they’re often high-achieving and highly educated, they speak fluent English and they’re embedded enough in their communities that native-born citizens will speak out on their behalf.
The Trump administration could have fought this characterization by laying down the line that “illegal is illegal.” Or it could have ceded the argument by deciding that DACA would remain in place for good. Instead, they’re trying to have it both ways.
Every time they acknowledge that DACA remains the policy of the US government is a time they are deciding not to end it. They are tacitly entrenching DACA as the policy not only of the Obama administration, but of the Trump administration as well.
But while many of the benefits of DACA for recipients lay in the greater psychological and economic well-being that came with knowing they were in the United States for at least a couple more years at a time, and being able to plan accordingly, the Trump administration has undermined that certainty. It’s replaced it with frequent reminders that Trump holds the fate of 750,000 people (and their families) in his hands; that he could change his mind about them at any time; and that no one in the government appears to be pressuring him to make a decision with any haste.
That fear is all the more potent on the other side of the bright line the Trump administration has drawn between DACA recipients and all other unauthorized immigrants — who are, universally, at risk of deportation. DAPA may never have been in effect, but the people DAPA would have protected were relatively safe during the final years of the Obama administration. They aren’t safe under Trump, and the Trump administration wants them to know that.
At this point, the majority of unauthorized immigrants in the US have lived in this country for over a decade. Millions (including some DACA recipients) have US citizen children; millions have been working here for years. The difference between someone with DACA and someone without it may be nothing more than having been 30 years of age (eligible) versus 31 (ineligible) when the program was unveiled in 2012; coming to the US as a 15-year-old (eligible) versus 16 (ineligible); having a tattoo that gets ignored (eligible) versus a tattoo someone has decided is a “gang symbol” (ineligible).
Many unauthorized immigrants who don’t have DACA are every bit as integrated as those who are; there are many “terrific people” (as Trump once described DREAMers) who don’t have DACA. But under the Trump administration, they — just as much as any unauthorized immigrant with a criminal record, or someone who just crossed the border last month — are fair game for deportation.
UPDATE: This story has been updated to reflect comments from Trump administration officials that, despite the memo of June 15, a final decision hasn’t yet been made about the ultimate fate of the DACA program. The author would like to apologize for taking the memo literally.