A growing contingent of Dreamers is facing a future in the shadows as DACA ages out of effectiveness even as the program is embroiled in political wrangling and court battles.
DACA, formally the Deferred Action for Childhood Arrivals program, marked its 11th anniversary Thursday with little fanfare.
The program still grants work papers, deferral from deportation and in some cases international travel allowance to about 580,000 Dreamers — undocumented immigrants who arrived in the country as minors.
But more and more Dreamers are falling out of DACA eligibility because of their age, and many who are technically eligible can’t sign on because of a legal challenge against the program.
DACA was initially conceived in 2012 by the Obama administration as a stopgap to protect Dreamers — and to court the Latino vote — ahead of expected congressional action on immigration.
A 2013 comprehensive immigration reform push nearly made it to the finish line, passing the Senate in a bipartisan vote, but key GOP primary upsets soured House leadership on the bill, which never got a floor vote.
The legislative logjam that’s persisted in the decade since has left DACA as the only means for Dreamers to formally participate in the economy and receive protection from deportation.
The program was enacted through an executive memorandum by the Obama administration, which decided to limit eligibility to Dreamers who had lived in the United States for at least five years before the memo was issued, setting the cutoff date at June 15, 2007.
At the time, that set eligibility for DACA from the ages of 15 to 30, though Dreamers as young as 5 at the time could age into the program when they turned 15.
The last of those 5-year-olds turned 16 Thursday, making them the last contingent who aged into DACA eligibility.
The oldest DACA beneficiaries turn 41 this year, and have lived in the United States for at least a quarter century.
“They're part of the essential fabric of the United States at this point,” said Rep. JoaquÃn Castro (D-Texas), a former chairman of the Congressional Hispanic Caucus.
“They’re teachers and nurses, essential workers. They're supporting themselves and their families and also helping to uphold the American economy. And I think it's unrealistic to just say you're gonna deport these millions of people.”
While the Biden administration has supported DACA in the courts and taken two major executive measures to protect the program — a memo on President Biden’s first day in office and a rule further codifying DACA in 2022 — it has not moved to expand the cutoff date.
“The administration should explore every avenue under executive authority to protect this cohort. It's not a substitute for Congress passing legislation, but, especially in view of this stalemate, the administration should do everything it can to protect them,” said Castro.
But the last seven such cohorts have faced a tumultuous path aging into DACA.
While the program faced legal challenges from the beginning, it was aggressively attacked through both the courts and the executive branch during the Trump administration.
Then-Attorney General Jeff Sessions formally rescinded DACA in 2017, vowing to fully terminate the program in six months and setting off a flurry of court battles.
“When the rescission first happened, there was an arbitrary cutoff date that was March 2018,” said José Muñoz, deputy communications director of United We Dream, an immigrant youth advocacy organization.
“Until we got the injunction that eventually led all the way to the Supreme Court the first time, there was a lot of worry because there was a very specific date where folks were going to start being unable to renew and there were folks who were gonna possibly lose their work permit, and it felt really imminent,” added Muñoz, a DACA recipient who arrived in the U.S. from Mexico as a baby.
Though the Supreme Court blocked the Trump administration’s recission of the program on procedural grounds, GOP-led states continued to challenge DACA’s legality in court.
Biden on his first day in office issued a memo backing the program, raising hopes that action would fortify DACA from further legal challenges.
But later that year, Texas District Judge Andrew Hanen ruled on a lawsuit against DACA, declaring the program illegal and enjoining the Department of Homeland Security from enrolling any new applicants, though he issued a stay to allow existing beneficiaries to remain in the program.
The Fifth Circuit upheld Hanen’s ruling, and the Supreme Court was due to review the legality of DACA, but the Biden administration issued its rule recodifying DACA, and the case was tossed back to Hanen, who could issue a new ruling at any time.
“The courts have this case — it's been heard,” said Rep. Sylvia GarcÃa (D-Texas), adding she expects a resolution in the next two months.
“We cannot continue more years of being in legal limbo. We know what we need to do. The courts want the Congress to act, so we should do our job and act,” added GarcÃa, who on Thursday re-introduced the American Dream and Promise Act, a bill that would provide DACA-like protections for Dreamers and other groups of vulnerable immigrants.
Bills with the same name and essentially the same content have twice passed the House, in 2019 and 2021, but have never cleared the Senate.
Homeland Security Secretary Alejandro Mayorkas marked the program’s anniversary this week echoing concerns about uncertainty for Dreamers and urging Congress to replace DACA with legislation.
“Today, on the 11th anniversary of DACA’s inception, the Dreamers — our friends and neighbors, teachers and nurses, firefighters and little league coaches who contribute to the strength of our nation – live in uncertainty, waiting to receive the permanent protection they deserve. For many of them, America is the only country and only home they have ever known,” Mayorkas said.
“I strongly urge Congress to finally give Dreamers the support they merit. In the meantime, the Department of Homeland Security will continue to advocate on behalf of DACA recipients every day, in the courts and through our actions, until Congress provides an enduring solution.”
According to a Migration Policy Institute report from 2021, the American Dream and Promise Act then would have protected up to 4.4 million people, including Dreamers, the children of temporary visa holders sometimes referred to as “legal Dreamers,” and beneficiaries of the Temporary Protected Status and Deferred Enforced Departure programs.
And in 2022, a report by FWD.us found that a majority of Dreamers graduating high school that year — about 100,000 — were not eligible for DACA and would not get legal work papers and in some cases be rendered ineligible for in-state tuition for college.
Those numbers show an increasing number of Dreamers who for one reason or another are ineligible for DACA or blocked from applying by court action.
Proponents of the Dream and Promise Act, which launched with seven Democratic and four Republican sponsors, say leaving the issue to the courts will perpetuate the program’s legal whiplash, making it a better political bet to attack the decade-old legislative impasse.
“Republicans have been saying that Democrats are for open borders for at least a few years now. That message has been in heavy rotation during the last few campaign cycles, and yet Democrats won the presidency in 2020 and had a stronger than expected 2022,” Castro said.
“And the polling of Americans shows that there's high support for Dreamers and so we shouldn't be so timid. Yeah, we – I mean Democrats – we shouldn't be so timid when the lion's share of the American people are with us on this.”
That prevailing public opinion, GarcÃa said, also reflects a degree of impatience among the electorate.
“It's important to me that we reflect the American support that's there for Dreamers – 72 percent, I've seen some polls showing as high as the 80s support Dreamers,” said GarcÃa.
“And frankly, the public just doesn't understand why we haven't done it.”
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