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DACA on the Docket

January 19, 2017

DACA ON THE DOCKET

By: Nicholas R. Bednar, Volume 100 Lead Articles Editor [1]

On December 9, 2016, Senators Lindsey Graham and Dick Durbin introduced the Bridge Act, which would provide temporary protection for undocumented children and young adults who have received immigration benefits under President Obama’s 2012 directive, Deferred Action for Childhood Arrivals (DACA).[2] Under DACA, qualifying undocumented immigrants who arrived in the United States as children may receive work authorization and deferred action on removal proceedings for a renewable period of two years.[3] On the campaign trail, Donald Trump promised to rescind DACA to protect jobs and U.S. borders.[4] The Bridge Act would provide “provisional protected presence” to qualified individuals, permitting these individuals to stay for an additional three years after enactment of the Act.[5] The Bridge Act has the potential to provide temporary relief to the hundreds of thousand DACA applicants currently fearing their removal from the United States. But if the Bridge Act does not pass, the removal of the hundreds of thousands of DACA recipients may result in an unsustainable backlog in the immigration courts. And even if the Act does pass, many of these DACA recipients—having lived here most of their lives—may overstay the three-year term of provisional protected presence.

During the 2016 election, both sides distorted DACA to symbolize immigration policy under their administrations.[6] Hillary Clinton painted DACA as a humanitarian policy, which “has given DREAMers the freedom to provide for their families, further their educations, and live their lives without fear of being deported from the country they know and love.”[7] In contrast, Donald Trump described DACA as an “illegal executive amnest[y],” promising that “[a]nyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.”[8] This humanitarian policy versus border protection debate has dominated immigration policy for years.

DACA has undoubtedly improved the lives of many of the 844,931 children and young adults who received its benefits.[9] But advocates have always hoped that DACA would eventually offer a path to a more permanent immigration status for its recipients.[10] The DACA-application instructions carry an ominous warning that “[i]ndividuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time, unless the Department of Homeland Security (DHS) chooses to terminate the deferral.”[11] The possibility that DACA would disappear, subjecting thousands to deportation hearings, has always loomed. DACA is neither the humanitarian initiative immigration advocates desired nor the “executive amnesty” described by its opponents. And the 2016 election confirmed advocates’ and DACA recipients’ worst fears: DACA could go away.[12]

But neither narrative accurately reflects why DACA is an important facet of the U.S. immigration system: a backlog of cases in immigration courts and enforcement priorities. When President Barack Obama announced DACA on June 15, 2012, he commented on its humanitarian merits but also stated, “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.”[13] DACA is not an effort to welcome undocumented children into the United States. Fearing the promise of immigration benefits for children would prompt an increase in unaccompanied minors, the administration ran paid advertising in Central America and Mexico with the message that “[t]he journey is too dangerous” and the “[c]hildren will not get legal papers if they make it.”[14] Earning the title of “Deporter-in-Chief” from some advocacy groups,[15] President Obama increased immigration enforcement during his presidency.[16] Since the creation of the Department of Homeland Security (DHS) in 2003, the annual budgets of Customs and Border Protections (CBP) and Immigration and Customs Enforcement (ICE) have nearly doubled from a collective $9.2 billion in 2003 to $17.8 billion in 2013.[17] Despite contrary statements by some critics, President Obama was never soft on immigration.

With this increase in deportations comes a greater burden on administration of the U.S. immigration system. U.S. immigration courts currently suffer from a backlog of 521,676 cases.[18] The average waiting time is 675 days for immigration courts nationwide.[19] In some states, that wait can be more than 1008 days.[20] A New York Times Article highlights this backlog in U.S. immigration courts.[21] Edhite Puken Shienji, an asylum applicant from Cameroon, waited fourteen years for a hearing only to have the hearing postponed to 2019.[22] Anecdotally, a wait of four to five years is not uncommon for a defensive-asylum application.

DACA serves a crucial role in the administration of U.S. immigration courts. These children and young adults are not a high priority for deportation. DACA recipients all entered the United States before reaching age sixteen, they are all educated or members of the Armed Forces, and none have been convicted of a felony, significant misdemeanor, or three or more misdemeanors.[23] DACA is an exercise of prosecutorial discretion, a recognition that the immigration system has greater enforcement priorities than children who grew up in the United States and have become contributing members of society.

The Immigration & Nationality Act, agency memoranda, and court decisions recognize the importance of prosecutorial discretion in the immigration system.[24] In a 2000 memorandum, then-INS Commissioner Doris Meissner urged immigration officials to exercise prosecutorial discretion in a “judicious manner.”[25] Meissner detailed the cost-related arguments in favor of prosecutorial discretion: “Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations . . . . the Service must make decisions about how best to expend its resources.”[26] Meissner and the INS have been replaced by the immigration agencies within the Department of Homeland Security, but her commentary on prosecutorial discretion is just as relevant today as it was sixteen years ago.

Donald Trump has discussed increasing deportations above their already record-high levels. An increase in deportations will put additional strain on the dockets of U.S. immigration courts. As with every administration before it, the new administration will have to use prosecutorial discretion as a tool to organize its enforcement priorities. Despite rhetoric to the contrary, Donald Trump’s own policies support retaining DACA as a form of prosecutorial discretion. With respect to immigration enforcement, Donald Trump has emphasized quick deportation of new entrants and immigrants who violate criminal laws.[27] With respect to awarding immigration benefits, Donald Trump has explained the importance of selecting “immigrants based on their likelihood of success in the U.S. and their ability to be financially self-sufficient.”[28] DACA applicants have not committed serious crimes in the United States and have already demonstrated themselves capable of living, working, and succeeding in the United States. DACA recipients are likely candidates for prosecutorial discretion in immigration proceedings with or without the formal DACA program.

Ending DACA for new applicants would be unfortunate; placing the 844,931 DACA recipients in removal proceedings would be an administrative nightmare. The U.S. immigration system cannot afford to double its case backlog. Wait times would increase both for individuals who have valid forms of immigration relief (e.g. asylum applicants) and those immigrants deemed dangerous or undesirable by the incoming administration (e.g. criminals). Criminals will stay in this country longer; asylum applicants will wait longer to be afforded the relief they are entitled to. The U.S. immigration system needs DACA, especially if the new administration intends to increase deportation. Unless Congress or the new administration agrees to provide continued deferral for DACA recipients, the U.S. immigration courts will struggle beneath the weight of the backlog and enforcement policies of the new administration will be stifled.

 

 

  1. J.D., University of Minnesota Law School 2016; B.A., University of Minnesota 2012. Lead Articles Editor of the Minnesota Law Review (vol. 100). Thank you to Grace Doherty, Karianne Jones, and Tina Zedginidze for their comments.This post does not advance partisan support for either party’s immigration policies. This piece approaches DACA solely through the lens of administration of the U.S. immigration system. ↑
  2. Seung Min Kim, Graham Preparing “Dreamers” Bill, Politico (Nov. 30, 2016), http://www.politico.com/story/2016/11/lindsey-graham-dreamers-bill-immigration-232017. ↑
  3. Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & immigration Servs., https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca (last visited Dec. 3, 2016). ↑
  4. Immigration, Donald J. Trump, https://www.donaldjtrump.com/policies/immigration/?/positions/immigration-reform (last visited Dec. 3, 2016). ↑
  5. The Bridge Act, S. 3542, 114th Cong. (2016). ↑
  6. My comments in this section do not reflect partisan support for one side or the other. I disagree equally with the characterization offered by both sides. ↑
  7. Hillary Clinton Statement on the 4th Anniversary of DACA, Hillary Clinton (June 15, 2016), https://www.hillaryclinton.com/briefing/statements/2016/06/15/hillary-clinton-statement-on-the-4th-anniversary-of-daca/. ↑
  8. Donald J. Trump, supra note 3. ↑
  9. U.S. Citizenship & Immigration Servs., Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics, and Case Studies (Sept. 13, 2016), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2016_qtr3.pdf. ↑
  10. DACA Creates Jobs, Educational Options for Immigrant Youth, Nat’l Immigration Justice Ctr. (June 15, 2015), http://www.immigrantjustice.org/press-releases/daca-creates-jobs-educational-options-immigrant-youth?q=press_releases/daca-creates-jobs-educational-options-immigrant-youth; Appleseed Network, A Dream Deferred: From DACA to Citizenship (2014), http://appleseednetwork.org/wp-content/uploads/2015/10/A-DREAM-Deferred-From-DACA-to-Citizenship-06.11.14.pdf. Roberto G. Gonzales & Angie M. Bautista-Chavez, Two Years and Counting: Assessing the Growing Power of DACA, American Immigration Council (June 16, 2014), https://www.americanimmigrationcouncil.org/research/two-years-and-counting-assessing-growing-power-daca. ↑
  11. U.S. Citizenship & Immigration Servs., OMB No. 1615-0124, Instructions for Consideration of Deferred Action for Childhood Arrivals 1 (2014), https://www.uscis.gov/sites/default/files/files/form/i-821dinstr.pdf [hereinafter DACA Instructions]. ↑
  12. Hansi Lo Wang, As 2016 Elections Loom, So Does a Possible End to DACA, NPR (Jan. 3, 2016), http://www.npr.org/2016/01/03/461192533/prepping-for-daca-s-last-year. ↑
  13. Remarks by the President on Immigration, White House (June 15, 2012), https://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration. ↑
  14. CBP Addresses Humanitarian Challenges of Unaccompanied Child Migrants, U.S. Customs & Border Protection (Nov. 3, 2016), https://www.cbp.gov/border-security/humanitarian-challenges. ↑
  15. Reid J. Epstein, NCLR Head: Obama “Deporter-In-Chief”, Politico (Mar. 4, 2014), http://www.politico.com/story/2014/03/national-council-of-la-raza-janet-murguia-barack-obama-deporter-in-chief-immigration-104217. ↑
  16. Ginger Thompson & Sarah Cohen, More Deportations Follow Minor Crimes, Records Show, N.Y. Times (Apr. 6, 2014), http://www.nytimes.com/2014/04/07/us/more-deportations-follow-minor-crimes-data-shows.html. ↑
  17. American Immigration Council, The Growth of the U.S. Deportation Machine: More Immigrants Are Being “Removed” From the United States than Ever Before 3 (2014), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_growth_of_the_us_deportation_machine.pdf. ↑
  18. Immigration Court Backlog Tool, TRAC Immigration (Oct. 2016), http://trac.syr.edu/phptools/immigration/court_backlog/. ↑
  19. Id. (sorting “What to tabulate” by “Average Days”). ↑
  20. Id. Colorado has a waiting time of 1,008 days. Illinois has a waiting time of 951 days. ↑
  21. Julia Preston, Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle, N.Y. Times (Dec. 1, 2016), http://www.nytimes.com/2016/12/01/us/deluged-immigration-courts-where-cases-stall-for-years-begin-to-buckle.html?_r=0. ↑
  22. Id. ↑
  23. DACA Instructions, supra note 11. ↑
  24. Shoba S. Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Interest L.J. 243, 243–44 (2010). ↑
  25. Id. at 254 (citing Memorandum from Doris Meissner, Commissioner of Immigration and Naturalization Service, on Exercising Prosecutorial Discretion (Nov. 17, 2000)). ↑
  26. Id. (quoting Memorandum from Doris Meissner, supra note 22, at 2). ↑
  27. Donald J. Trump, supra note 3. ↑
  28. Id. ↑
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