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On DACA’s Termination Date, Path Forward Remains Unclear

March 5, 2018, 9:31 PM

March 5 was supposed to be the end of the Deferred Action for Childhood Arrivals program, but thanks to a pair of court decisions, it’s still hanging on by a thread.

“In the months ahead, thousands of DACA recipients will be scrambling to file their renewal applications,” and many will see their DACA permits expire before a decision on those renewals, National Immigration Forum Executive Director Ali Noorani told Bloomberg Law March 5. “Individuals will fall out of status” and “lose their work authorization,” he said.

“This is the worst-case scenario for employers” that have come to “depend on these individuals,” said Noorani, whose organization advocates in favor of immigration. “The president has created a mess” by ending DACA, and “as a result, employers are faced with some really tough decisions in the time ahead,” he said.

They will either have to fire their employees or put them on “some sort of leave of absence,” but the latter course is questionable legally, he said.

The program, launched in 2012 by the Obama administration, provides deportation protection and work permits to young, undocumented immigrants who came to the U.S. as children, known as “dreamers.”

The Trump administration ended DACA Sept. 5, 2017, but said March 5, 2018, would be the official end date of the program. DACA recipients whose work permits were set to expire by that date were allowed to apply for renewal—but only if they did so by Oct. 5, 2017.

Then the federal courts started to weigh in. A federal judge in California on Jan. 9 ordered that U.S. Citizenship and Immigration Services start accepting DACA renewal applications from everyone. A second federal judge in Brooklyn, N.Y., later issued a similar order. Both cases are pending in their respective federal appeals court following the U.S. Supreme Court’s Feb. 26 refusal to hear the Justice Department’s direct appeal from the California case.

No Stability From Court Orders

“People are interpreting these court injunctions as something that is much more certain than it really is,” Greg Chen, director of government relations for the American Immigration Lawyers Association, told Bloomberg Law March 5. “The court process is extremely unpredictable,” he said.

The court orders leave DACA in place for now, but they could be overturned on appeal. They also don’t require USCIS to accept any applications from immigrants applying for DACA for the first time.

The Federation for American Immigration Reform believes the Supreme Court “will rule in favor of the administration,” RJ Hauman, government relations director for the group, told Bloomberg Law March 5. “What remains to be seen is how different the political environment will be” when that decision comes down, he said.

Some 11,360 DACA recipients applied for renewal between Jan. 10 and Jan. 31, according to U.S. Citizenship and Immigration Services. As of Jan. 31, there are 13,770 renewal applications pending before the agency.

Of the 689,800 immigrants with an active DACA permit as of Sept. 7, 2017, 535,600 have an expiration date after March 5 and thus wouldn’t have been able to apply for renewal but for the court orders. There are currently 682,750 immigrants with active DACA status.

During the week of Feb. 12, the Senate took a stab at legislation that would provide legal status to immigrants in DACA, as well as other young undocumented immigrants who either didn’t qualify or didn’t apply for the program. But lawmakers weren’t able to pass any of the offered bills, including one backed by the White House that would’ve provided legal status to 1.8 million immigrants in exchange for border wall funding and cuts to legal immigration.

“I’ve heard legislators now commenting publicly that the pressure to get to a solution for dreamers has lessened” now that USCIS is again accepting renewal applications, Chen said. “I disagree with that.”

But there are still “active conversations” happening in Congress on the issue, Chen said. “The remarkable achievement in the past six months since the president rescinded the program is the bipartisan momentum that has developed and gained steam to get a permanent solution for dreamers passed,” he said.

March 23 ‘Target Date’

The next “target date” for political pressure to enact legislation is March 23, the date the current continuing resolution funding the federal government expires, Chen said.

House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) should include at least a “three-year patch” allowing DACA to continue, Noorani said. The National Immigration Forum “would like to see something more permanent,” but it’s not certain that Republicans “are in a mood for more permanent solutions,” he said.

“There’s also a real political reason for Ryan and McConnell to get this off the table,” Noorani said. Unlike Hauman, he said he believes that the Supreme Court has a good chance of ruling against the Trump administration in the DACA case.

A “bad DACA decision"—which could come down as early as the fall—is the last thing that a moderate Republican wants to deal with when running for reelection in the midterms, he said.

“We haven’t heard anything on our end” about a DACA package being included in the next spending bill, Hauman said. But FAIR, which advocates for lower immigration levels, would prefer that any DACA debate be public, he said.

It would be “extremely misguided” to reach a DACA deal in a “smoke-filled back room” and to risk another government shutdown, Hauman said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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