In August 2001, Sen. Dick Durbin (D-Ill.) (SFS ’66, LAW ’69) and Sen. Orrin Hatch (R-Utah) introduced the Development, Relief, and Education for Alien Minors Act in the U.S. Senate. The DREAM Act would create a process for undocumented students to apply for conditional residency, eventually leading to permanent residency. The bill failed to pass in the Senate, but it exhilarated Dreamers’ advocacy efforts for a path to citizenship in the only country they call home.
Given Congress’ failure to protect Dreamers, the Obama administration exercised the president’s prosecutorial discretion in the form of deferred action to grant relief from deportation to certain young people through the Deferred Action for Childhood Arrivals policy in 2012. And in June 2020, the highest court in the land legitimated Dreamers’ efforts to stay in this country. Congress has no choice but to take the DREAM Act seriously, and the Georgetown University community is in an unparalleled position to make that happen.
When implemented, President Barack Obama emphasized that DACA was not a path to citizenship and that the Department of Homeland Security had the power to terminate the initiative at any time. Sure enough, the Trump administration soon encroached into DACA territory. In September 2017, then-Attorney General Jeff Sessions declared DACA unconstitutional and ordered Acting Secretary of Homeland Security Elaine Duke to terminate the initiative in an efficient fashion.
Sessions was wrong. The District Court for the District of Columbia found that the acting secretary’s memorandum had failed to provide an adequate rationale for the termination of the DACA initiative and gave DHS 90 days to reissue a memorandum. Georgetown graduate and Secretary of Homeland Security Kirstjen Nielsen (SFS ’94) drafted the new memorandum. Nielsen, however, simply expanded on Duke’s memorandum by reaffirming Sessions’ concerns about the legality of DACA, hoping the Supreme Court would also declare DACA unlawful.
The government filed a request for review to the Supreme Court, and the hearing took place November 12, 2019. Two questions were of particular interest: one concerning the legality of DACA and the second about the reliance interests Dreamers have developed in DACA’s persistence.
When asked about what particular provisions of the Immigration and Nationality Act DACA violated, Solicitor General Noel Francisco said there was no specific violation but argued instead that “you need to at least locate the authority to do so somewhere in the INA.” Justice Elena Kagan quickly exhumed the immigration code and replied that the Obama administration “located the authority in the INA’s grant of broad discretion over national immigration enforcement policy.” Deferred action, as invoked in the 2012 DACA memorandum, holds here.
The second question recognizes Dreamers’ interests in living and working in the United States. Justice Stephen Breyer stressed the numerous organizations, including Georgetown, that delivered amicus briefs in support of DACA: “There are 66 healthcare organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses.” Nielsen simply ignored these facts in her memorandum to terminate DACA.
Chief Justice John Roberts alluded to a clear distinction between deferred action and the benefits — such as work authorization — that come along with DACA. He acknowledged that both the Trump and Obama administrations had pledged not to deport Dreamers — confirming deferred action — and so the question at stake was really about the benefits triggered by the Obama initiative.
In a 5-4 vote, the Supreme Court ruled in favor of Dreamers on June 18, 2020. Roberts wrote the opinion of the court. The court held that the memorandum terminating DACA failed to consider the option of retaining deferred action. Instead, the acting secretary simply followed Sessions’ advice on terminating the Obama initiative in its entirety. The failure to separate and treat deferred action and the reliance interests independently renders the government’s decision to terminate DACA “arbitrary and capricious.”
The court’s respectful, low-temperature opinion, however, sent a strong signal about the importance of Congress to act in protecting Dreamers. Roberts seems to believe that the benefits that come along with DACA can be challenged on legal grounds. In fact, U.S. Citizenship and Immigration Services released an opposing statement to the court’s decision, and it is unclear at this point whether they will uphold the court’s order in its entirety. For example, USCIS might decide not to accept new DACA applications.
The 2012 DACA memorandum can be fully invalidated if the Trump administration continues its litigation against DACA. Although both President Donald Trump and presumptive Democratic nominee Joe Biden have pledged not to deport Dreamers, the invalidation of the DACA memorandum means DACA beneficiaries will lose their working permits and driver’s licenses. If these benefits are taken away, the lives of Dreamers will once again be enmeshed in an amorphous cloud of uncertainty.
DACA would never have come this far without its supporters’ advocacy efforts. The American people recognize that Dreamers’ talents are needed in solving today’s most pressing challenges in our society. The pieces are finally coming together: The executive has pledged not to deport Dreamers, the Supreme Court has legitimated Dreamers’ efforts to stay in this country and Congress must now legislate on behalf of the American people to protect Dreamers.
There are 21 Hoyas in the U.S. House of Representatives and seven in the Senate. The Georgetown community is in a novel position to urge our graduates in Congress to put Dreamers on a path to citizenship. It is the right thing to do and the right time to do it. Call your Hoyas in Congress to protect Dreamers.
Abel Cruz Flores is a doctoral candidate at Georgetown University.