It’s the debate that Congress has to resolve over the next two days if it wants to avoid a government shutdown: How urgent is a DACA fix, really? How badly does Congress need to pass a bill this month to give 690,000 young unauthorized immigrants (who are already losing their protections under the Deferred Action for Childhood Arrivals program) a shot at permanent legal status?
While some Republicans have often pooh-poohed the urgency of a DACA fix, Democrats say the situation is dire. And before this past week, it unequivocally was.
But all of a sudden, the original DACA program has been partially resurrected — and its bizarre afterlife complicates the argument over when Congress will need to act.
That’s partly because of a shocking ruling issued last week by Judge William Alsup, ordering the administration to resurrect part of the DACA program and allow the 690,000 young unauthorized immigrants protected from deportation under the program when the Trump administration started shutting it down in October to apply for renewals of their two-year work permits.
But even more than Alsup’s ruling, the Trump administration’s response has muddied the waters on DACA. The Department of Justice, led by Attorney General Jeff Sessions, is challenging Alsup’s ruling in a way that’s tactically aggressive but not doing everything they can to get DACA shut down again as quickly as possible.
The DOJ’s current strategy makes it entirely possible that as of March 5 — the day the Trump administration said expiring DACA permits would no longer be renewable, which has been treated by Congress as the “deadline” for a DACA fix — the federal government will, in fact, still be allowing DACA recipients to renew their work permits.
To some in Congress, including Senate Majority Leader Mitch McConnell, that’s a good excuse to put a DACA deal on the back burner.
Senate Majority Leader Mitch McConnell says recent court injunction on DACA means Congress has ``at least until March, at a minimum" to address immigration. Says Democrats have no need to "hold government funding hostage" this week— Laura Litvan (@LauraLitvan) January 16, 2018
To DREAMers themselves — several of whom contacted Vox to talk about their experiences — it’s something of a mixed blessing.
Some DACA recipients are eagerly grabbing the opportunity to reapply while they can: “Nothing to lose,” one DACA recipient told Vox, “almost two years of work ability to gain.” Others are deeply wary of trusting the Trump administration to administer a program it’s already vowed to kill.
And all of them would trade the reanimation of DACA, in a heartbeat, for an end to the “turbulence” and instability that has defined their lives over the past several months — for Congress and the president to give them a chance to stay in the US for good.
The Trump administration has acted more quickly to (partially) restore DACA than to fight the ruling that preserved it
Judge Alsup’s ruling last week didn’t order the Trump administration to start accepting new applications for DACA renewal immediately. Instead, it ordered the administration to come up with a process in a reasonably timely fashion, and to post public notice of it accordingly — a pretty standard order for a ruling on a program with underlying constitutional questions.
What wasn’t standard — at least, not for this administration — is how the Trump administration responded.
Given that the Trump administration clearly thought DACA was unconstitutional and was trying to kill it, observers assumed the government would try to get a higher court to overrule Alsup before any DACA renewals had actually been approved; DOJ would move quickly to appeal or freeze the order, while US Citizenship and Immigration Services would move slowly to actually carry the order out.
That’s the opposite of what it actually did.
It took the administration less than five days to announce that it would begin to accept renewal applications for three broad categories of people who had already received DACA:
- Immigrants whose work permits were set to expire after March 5, 2018 (who previously had been barred from renewing)
- The 22,000 immigrants whose work permits expired (or are about to expire) between September 5 and March 5, who didn’t get the chance to renew in the narrow window DHS created in September
- Immigrants whose work permits had already expired in the year before Trump wound down the program
And while no immigrant is allowed to apply for DACA who’s never had it before (for example, people who were too young to apply for DACA before September 5, 2017, but have turned 16 since then), immigrants who once had DACA but whose work permits expired more than a year ago are allowed to reapply for an “initial” DACA grant.
Trump’s US Citizenship and Immigration Services erred on the side of stinginess when it designed the DACA drawdown. Yet its response to Alsup’s ruling was anything but.
Meanwhile, the usually aggressive Department of Justice was silent. It took them a week to announce what they would do — and they still haven’t actually moved to do it.
Sessions and the DOJ are trying to skip ahead to the Supreme Court — but they’re not acting to get DACA shut down ASAP
The office of Attorney General Sessions finally made it clear on Tuesday — just days ahead of the government shutdown deadline — that they weren’t going to take Alsup’s ruling lying down. In addition to announcing that they’d file a notice to appeal the order to the Ninth Circuit Court of Appeals (the president’s least favorite circuit court), Sessions’s office said they were going to ask the Supreme Court to agree to hear the case even before the circuit court had issued a ruling of its own.
This move — technically called a “petition for certiorari in advance of judgment” — is, to put it mildly, extremely unusual. It’s reserved for cases that are, according to the Supreme Court’s rules, “of such imperative public importance as to justify deviation from normal appellate practice.” A 2011 SCOTUSblog analysis from litigator Kevin Russell concluded that “the Court has been true to its word, granting cert. before judgment in only a handful of cases over the past seventy-five years.”
The occasions when the Supreme Court is most likely to agree to skip the circuit court — often, when it’s already agreed to hear one case on a legal question and just decides to add another — don’t generally apply here. And as BuzzFeed’s Chris Geidner noted, the argument the administration probably wants to make — that it doesn’t trust the “liberal 9th Circuit” to give it a fair hearing — probably won’t fly:
The problem with making a generalized request is that it would be easy for the court to just push it back to the 9th Circuit, telling DOJ the justices want further development of the issues before they take it on.— Chris Geidner (@chrisgeidner) January 16, 2018
Obviously, the other side, taking direct aim at the 9th Circuit would be highly unusual — and not something that I see the Chief Justice or Kennedy (at the least) appreciating.— Chris Geidner (@chrisgeidner) January 16, 2018
The best argument the Trump administration has is that the fate of a program that protects hundreds of thousands of immigrants from deportation meets the letter of the Supreme Court rule about “imperative public importance.” Josh Blackman, a law professor at the South Texas College of Law and a conservative legal analyst, believes that’s a pretty easy bar to clear — and that, given that the Supreme Court has already ruled against Alsup in some preliminary motions in this case, it’s a question of when, not if, the administration will prevail.
But this is where things get weird.
If the Supreme Court agreed to put the DACA case in its queue, it probably wouldn’t hear oral arguments on it until after the new term starts in October 2018 — with a decision coming sometime after that. Even if it agrees to “expedite” the case, it probably won’t come out with a ruling until June. Moving straight to the Supreme Court allows the Trump administration to try to wrap up the DACA lawsuit more quickly, but it doesn’t give it a chance to shut down the zombified renewal process for another several months.
The administration could try to shut down DACA again quickly by asking the courts for a “stay” of Judge Alsup’s ruling that a court could rule on without hearing arguments. That’s what the White House has done with unfavorable rulings in the travel ban cases, for example. But it hasn’t announced that it’s going to do that.
It’s not impossible that the administration will decide to file a stay request at some point. And it’s possible that, as Blackman speculated on Twitter, the administration isn’t sure it can meet the standard for a stay: that allowing the lower court’s ruling to remain in effect would cause “irreparable harm.”
But that forces the DOJ to thread a pretty thin needle. To get SCOTUS to agree to throw normal procedure out the window and take the case straight from a district court, it has to argue that the need to kill DACA for good is unusually urgent — while acknowledging that continuing to process DACA renewals for the next few months or longer doesn’t cause irreparable harm.
The curious combination of aggression and reluctance in the DOJ’s approach has raised a few eyebrows about whether its real motivations are legal or political. After all, as long as Alsup’s order remains in effect, the March 5 DACA “deadline” really is meaningless — immigrants whose work permits expire before it, and after it, will be equally able to renew.
Congress was galvanized into working on a permanent solution for DREAMers by Trump ending the DACA program. And initially, Alsup’s ruling didn’t appear to persuade members of Congress that the urgency had disappeared. But as it became clear that the DOJ wasn’t acting as quickly as it could, McConnell (who had hinted for months, wrongly, that the president could just extend DACA if Congress didn’t act) suddenly had a real excuse for not wanting to rush.
This might take the pressure off Congress. It doesn’t lift the uncertainty from DREAMers.
DACA recipients themselves may not be following the tactical minutiae of the DOJ’s court fight, but activist groups have worked hard to spread the basic message: DACA is open for renewals again — but no one knows how long it will last.
After all, if the Trump administration decides to push for a stay, that decision could come down within a few days — not enough time for someone to submit an application and get it approved. And US Citizenship and Immigration Services declined to clarify on Wednesday whether it would approve or reject applications that were en route or waiting for review if a new court ruling came down, saying that they “do not comment on pending litigation.” Immigrants who need DACA renewal can’t necessarily afford to wait.
Some DACA recipients have jumped right in. One post shared widely on Twitter Tuesday by celebrity activist Jose Antonio Vargas captured the “drop everything and get your renewal in” attitude:
“With the window of opportunity open, I had to take advantage of it,” says one DACA recipient. She called her lawyer on Saturday night as soon as the USCIS announcement came out, and mailed her application Tuesday. With just a few months left on her current work permit, having a shot at renewal allows her to think about renewing her lease on her apartment — to plan for a life in the US that extends into the summer of 2018.
“It was an easy decision to just submit the renewal,” said another DACA recipient who mailed his application in Monday. “Nothing to lose, almost two years of ability to work to gain.” (Because work permits granted under DACA are granted two years from the date they are issued, someone whose DACA renewal gets approved before his existing work permit expires won’t get two more full years.)
That DACA recipient works in finance, so the $495 application fee wasn’t hard for him to scrape together. For other DACA recipients, that’s a bigger hurdle.
Luis Nolasco of California, who works for a regional ACLU office, dipped into an emergency fund he’d saved up “prior to Trump being elected” to pay his renewal fee. Nolasco’s current permit is set to expire on May 25, 2018 — 10 weeks past the cutoff for him to renew last fall. “I’ve been planning on what I was gonna do when my DACA expired as soon as Trump rescinded it,” he says, “which was a lot of uncertainty, but now I’ve been able to hold off on those feelings for a minute.”
His anxiety isn’t entirely gone: “I know the process (for approving renewals) is based on discretion,” he says. No approval is guaranteed. Nolasco has a misdemeanor on his record for engaging in civil disobedience, but in theory, even DACA recipients with no criminal history might see their renewal applications rejected.
The uncertainty of submitting an application is enough to make some DACA recipients wonder whether it’s worth it at all. Kevin Rosales, an engineer in Connecticut, says that with “a new development happening every day” — and 10 months before his current work permit is set to expire — “I will be waiting another month or so to submit a renewal application.”
Another immigrant, with only a few months left on her current permit, expressed fear of trusting the federal government with her personal information again — apparently not comforted by DHS Secretary Kirstjen Nielsen’s promises to Congress that Immigration and Customs Enforcement agents will not “prioritize” DACA recipients for removal or get their records en masse from USCIS.
No matter what decision they’re making right now, though, everyone is looking to Congress. Life under DACA is “one day at a time,” multiple recipients say; the confidence and rootedness that many immigrants with DACA felt after the program had been in place for years appears to have evaporated. Having a shot at two more years of protection under DACA — for however long that ruling lasts — doesn’t change that.
“Every night I worry,” said the DACA recipient who is planning to extend her lease. “And every morning I wonder what announcement will come today about DACA and DREAMers.” That anxiety won’t go away until “we have a permanent solution and permanent stability — and that’s something only Congress can provide.”
“How I feel depends on the day,” said the DACA recipient in finance. “One day I am optimistic, one day I just don’t care, and some days I am pissed off that there is only words and no action from both sides. ... To be frank, I feel if nothing gets done this week, nothing will happen.” And DACA will remain in its current zombified state, until it is killed, one way or another, for good.