A federal judge ruled Wednesday that the Deferred Action for Childhood Arrivals (DACA) program was unlawful, dealing a stinging blow to the Biden Administration and Democrats who have supported the program since its creation in 2012 by President Barack Obama.
But U.S. District Court Judge Andrew S. Hanen’s ruling might be more notable for what it did not do. The judge, an appointee of President George W. Bush, declined Republican plaintiffs’ requests that he outrightly end the program for the estimated 580,000 undocumented immigrants it still covers.
He also managed to do something the Democrats have not chosen to do in 2023: He placed issues surrounding DACA recipients – better known as "Dreamers" – on center stage politically.
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If Democrats are savvy, they should welcome this inadvertent gift. A wide range of polls over the past decade have consistently found that Americans oppose deporting or otherwise punishing Dreamers, who are generally allowed to remain in the United States despite entering the country illegally as children.
And when a conservative judge rules twice to declare an immigration program unlawful, yet finds it acceptable enough to allow that presumed lawlessness to continue indefinitely into the future, Democrats would be wise to seize the election season opportunity and elevate the issue to expose Republicans who want to buck public opinion by essentially dragging kids, who’ve committed no crimes, out of their American homes.
“The judge seemed concerned about perceptions that his ruling could trigger deportations of DACA recipients,” Politico reported. “He stressed in his new opinion and a related order that he is not ordering the detention or removal of anyone and that those decisions remain in the hands of DHS officials.”
So far, Democrats’ responses to the judge’s ruling have, at best, been muted.
Congress, as is typical, is busy being chaotic. The most extreme elements of the Republican-controlled U.S. House are (again) threatening to shut down the government by not funding it. Potentially impeaching President Joe Biden for reasons unclear is dominating Capitol Hill discourse. Constructively addressing DACA, or immigration, generally, is not a priority beyond perfunctory statements and press conferences from liberals and right-wing bellowing about “invasions” on the Southern border.
Homeland Security Chief Alejandro Mayorkas, a key figure in an administration that has avoided making Dreamers a front-burner issue, was described as “deeply disappointed” about this week’s ruling and had this to say, according to Politico:
“The ruling preserves the stay, which means current DACA recipients will not lose their protection from removal. But this ruling does undermine the security and stability of more than half a million Dreamers who have contributed to our communities. The United States is the only home they have ever known. Congress has failed to act, and now Dreamers face an uncertain future, waiting to receive the permanent protection they deserve.”
That might be a long wait.
Action — and inaction
This is already Hanen’s second ruling declaring DACA unlawful. In 2021, he concluded that Obama had usurped the role of Congress by enacting DACA through an executive memo. That was affirmed in 2022 by the 5th Circuit Court of Appeals, with the court returning the issue to Hanen to consider whether Biden’s tweaks to the program made it lawful.
The answer was, again, a firm “no.”
Stephen W. Yale-Loehr, a professor of immigration law practice at Cornell University, told Raw Story that the legal case — already years old — will take far longer to resolve than most people realize.
“It certainly will be appealed to the Fifth Circuit and then, I’m sure, to the U.S. Supreme Court,” Yale-Loehr said. “There will be briefings and arguments that will all take a long time. I don’t think we’ll get a decision until June 2025.
Yale-Loehr added that, with all the administrative proceedings that would follow a verdict, and even if that verdict brought DACA to an end, it’s unlikely any existing Dreamer would face deportation for at least five years from now. But that’s not a reason to drag heels on the legislative side, he said.
“I understand why Dreamers are worried. I would be worried too,” Yale-Loehr said. “It’s easy for me to say as an immigration law expert, that you won’t be deported. But when you go to bed at night, you’re not sure if there’s going to be a knock at the door.”
Yale-Loehr said that’s all the more reason to move ahead on the legislative front. But he added, “There are a lot of politics. When it comes to immigration, Congress has gotten more and more dysfunctional since 2009 and 2013. And it’s still dysfunctional.”
Yale-Loehr said he and colleagues plan to formalize an idea in a white paper later this month as a pragmatic suggestion to combat that dysfunction. Any solution, he said, would need to strike a compromise on three points: a path to citizenship for Dreamers; better border security and border management; and more work visas aimed at addressing labor shortages.
Democratic strategists might want to add that to their reading list. They have little defense for the administration’s work at the Southern border. And now they’re receiving plenty of friendly fire from fellow Democrats to supplement the daily avalanche of often xenophobic and racist insults from the MAGA world.
Facing that sort of squeeze, it’s understandable that issue avoidance might seem the most comfortable option. But Democrats cannot make the issue go away by playing dead, particularly when so many voters — who will be voting in congressional and presidential elections in just over a year — are clamoring for real solutions.
Another scholar, César Cuauhtémoc García Hernández, a professor of law at Ohio State University who specializes “in the intersection of criminal and immigration law,” was less charitable about the Democrats’ pileup.
“Look, Democrats are scared to death about immigration,” García Hernández told Raw Story. “They try to stay as far away as possible from anything that falls under the rubric or the umbrella of immigration.
“DACA is the best illustration of that because these are the most sympathetic people around,” he added. “These are the people who have done everything the way that you would hope that a young person does things, including staying out of trouble. But for all that, the Democratic party still isn’t out there trying to talk about the travesty that has become the limbo of their lives. They should be talking about DACA day in and day out.”
What Democrats should do
Democrats would do well to launch a counter-strategy that places “Defend Deporting Dreamers” on the top of Republicans’ daily to-do lists. Especially with a large swath of the Republican Party tethered to building a Medieval wall and perhaps still attempting to send the bill to Mexico.
One person for whom immigration policy remains a daily priority is Irving Hernandez, himself a proud Dreamer living in San Diego. Hernandez came to the United States from Mexico in 2001 at the age of 6. He says he graduated at the top of his high school class, and received a B.S. in aerospace engineering from San Diego State University.
But Hernandez cannot pursue his field of expertise because he cannot get a security clearance from the only country he has ever called home. He manages the work of a law firm.
Hernandez told Raw Story he is an activist for fellow Dreamers and part of a Hispanic group – and the only Dreamer in the room – for a meeting with Biden during his presidential campaign against Donald Trump.
Hernandez said he and some fellow Dreamers had worked on behalf of Biden and other Democrats because they trusted that the party would come through on their dream of permanent citizenship.
He’s not so certain now.
“I got to ask him a question. I said Mr. Vice-President, Congress has passed HR 6, the Dream and Promise Act, not once but twice and nothing happened. So when it comes to DACA, are you going to invest the political capital?
Hernandez said Biden responded with a campaign talking point “about how Dreamers are Americans and how the nation needed to do more about the asylum situation at the border.”
He says Biden’s intentions are good, but his performance on immigration might be another matter.
“They can always talk about what they want to do. But how much political capital are they willing to invest? I think the answer is none.”
A small, but telling sign of where immigration currently ranks among Biden’s re-election selling points comes in the form of a one-page “Biden Wins” graphic the campaign is presently urging supporters to share on social media.
It highlights Biden’s record on 13 issues and accomplishments: jobs, unemployment, Inflation Reduction Act, capping the cost of insulin, infrastructure, manufacturing, veterans, gun safety, climate change, the confirmation of Supreme Court Justice Ketanji Brown Jackson, supporting Ukraine, increased Affordable Care Act enrollment and marriage equality protections.
What’s not on the list speaks volumes.
