By Laurel Brubaker Calkins and Ellen M. Gilmer, Bloomberg
(Bloomberg) — Advocates for more than 600,000 undocumented immigrants who entered the US as children told a federal appeals panel in New Orleans that ditching Obama-era protections would cause “severe disruption” for people who have been living and working in the country for years.
The so-called Dreamers are part of a 2012 program called Deferred Action for Childhood Arrivals, which shields them from deportation and provides work permits. But nine states including Texas and Missouri sued claiming DACA was created illegally, which could lead to these immigrants being kicked out of the US — where many have built lives and started families.
At a hearing Wednesday before a three-judge panel — all Republican appointees — New Jersey’s state solicitor urged the court not to strip Dreamers of their protections, even if DACA is scrapped. New Jersey stepped into the legal fight on behalf of the immigrants when the Trump administration opted not to defend DACA. President Joe Biden has since pledged to “fortify” the program.
“A full decade later, eliminating DACA would cause extreme disruption to recipients, employers, their citizen children and to the states,” State Solicitor Jeremy Feigenbaum said. “We could have a DACA recipient serving in the military on Monday, who no longer will be able to serve there on Tuesday.”
The coalition of Republican-led states trying to stop DACA claims a president can’t legally usurp congressional authority to set immigration policy or alter federal programs without following all required rule making steps. They also complain DACA grants federal benefits — which the states must pay for — to whole classes of people in the country illegally in violation of immigration law.
While the US Supreme Court in 2020 ruled that then-president Donald Trump had no right to abruptly end DACA, the legal fight has shifted to whether former President Barack Obama had authority to start DACA in the first place.
Those currently enrolled in DACA can get work permits renewed, but no new applications will be accepted until the legal quagmire around the program is sorted out. It’s most likely to end up back at the Supreme Court because federal judges in different parts of the country have created a patchwork of legal rulings.
Studies by the Department of Homeland Security show Dreamers and their households contribute $5.6 billion in federal taxes and another $3.1 billion in state and local taxes each year. Biden administration lawyers stressed in court papers that Dreamers’ ability to lawfully work, access employer health care, buy homes and pay property taxes reduces the financial burden on states to provide education and health services to undocumented immigrants.
Federal lawyers argued DACA complies with existing immigration law because agents retain discretion to reject specific applicants on a case-by-case basis, while focusing limited resources on expelling higher-priority offenders.
“DACA is lawful in its entirety,” DOJ attorney Brian Boynton told the court.
Feigenbaum urged the judges to send the program back to the DHS so the agency can fix it. “Whatever the court says, that’s just the beginning,” Feigenbaum said. “We know it is ultimately for the agency to make the remaining policy choices.”
‘Rejected’ by Congress
Texas Solicitor General Judd E. Stone II, in his comments to the panel, said Congress has repeatedly refused to amend immigration laws to specifically protect Dreamers, failing to pass a measure tailored for them at least seven times by 2015. “Congress has rejected the Dream Act every time it’s been proposed,” Stone said.
According to lawyers for the Dreamers, Texas provided no evidence that it actually spends more on health care, education and social services for DACA recipients, as opposed to funds it spends on all undocumented immigrants. Unless Texas and the other states can prove a concrete economic injury, they have no legal right to challenge DACA, advocates for the program said.
Stone said that the standard for measuring the impact “is at least a dollar of spending” by the state and there is no evidence that “that number is zero.”
If even a few Dreamers leave the US because they lose DACA protections, the state’s economic injury will be lessened, Stone said. He pointed to a survey of Dreamers who called DACA “critical to their ability to live and work in the US,” which led a Texas expert witnesses to conclude that “at least some” Dreamers would voluntarily self-deport.
“The US will lose out on so much economic opportunity and talent if we don’t get this pathway to citizenship,” Enrique Sanchez, a 26-year-old DACA recipient who is an advocate at the American Business Immigration Coalition, said in an interview before the hearing. Sanchez said his legal status prevented him from becoming a law enforcement officer in his home of Park City, Utah.
Judge James C. Ho pressed lawyers for DHS and the Dreamers to defend their claim that DACA recipients won’t voluntarily leave the country if they lose their protections and work permits, given that nearly a quarter of DACA recipients in the survey said they’d be “likely or very likely” to leave the US if the program is scrapped.
“This is a question about literally your entire life,” Ho said of the Dreamers’ survey answers. “This is a pretty profound question for them to get wrong.”
“There’s just no way to know,” the DOJ’s Boynton told the judges. “We’re talking about a population with deep ties to this country, who’ve been residing continuously in this country since 2007.”
DHS is working on a regulation to “fortify” DACA in light of the persistent legal challenges against it. The agency on Tuesday sent the proposal to the White House for review.
The case is Texas v USA, 21-40680, US Circuit Court for the Fifth Circuit (New Orleans).