The Confused, Cloudy Future of DACA

By | LXBN | November 16, 2016

One week out, and many around the U.S. are still wrapping their heads around what Trump as the president-elect means for our country. But with immigrants here under the Deferred for Childhood Arrivals (DACA) initiative, that shock is quickly turning to worry.

While there’s still a couple months before Trump’s administration will take office, DACA participants certainly face an uncertain future ahead of them: as the American Immigration Lawyers Association (AILA) stated in a practice alert, if Trump could move on DACA “immediately or soon after the inauguration, weeks or months later, or not at all if he softens or changes his view.”

Will his campaign bluster prove to be a selective breeze or a massive hurricane? No one’s quite sure yet. Truth is, no one is sure what to make of Trump’s firm immigration policies (espcially when coupled with his racist comments), making it hard to just “give him a chance.” If we’re taking Trump at his loudest word, at least DACA is going to get cut in some way. But in the week since the election, even that remains unclear.

“It’s very difficult to predict what is likely to happen across the immigration spectrum because Trump has issued so many conflicting statements, and even when he walks back some of his statements (like saying now he will only focus on deporting criminal aliens), he could change his mind again, or be influenced by one of his advisors to revert back to a former position,” said Susan Cohen, editor of Mintz Levin’s Immigration Law blog, in an email to LXBN. “Honestly I think it is too early to say what is going to happen. But it is certain that those with DACA permits face an uncertain future.”

That uncertainty is only compounded when you take in the number of options Trump has for cutting reform like DACA: He could suspend or revoke proposed and recently finalized immigration reform initiatives, alter travel restrictions, create more ICE patrols, enact mandatory E-Verify, or—as Seyfarth Shaw’s client alert put it—reinstate ‘the “Culture of No’ on Steroids.”

But as Seyfarth Shaw immigration attorney Angelo Paparelli and author of the client alert notes, nothing is likely to happen immediately. And though it’s possible a strict removal process will begin, he’s hearing from different sources on both sides of the aisle that it won’t be the case.

“It’s counterproductive to immediately take action against people who have DACA for variety of reasons: The focus may be on the removal of criminal aliens—just today there was a quote that suggested there may be 2-3 million criminal aliens,” said Paparelli, who also authors the Nation of Immigrators blog. “And we have to bear in mind that until an appropriation of funds happens, there’s not going to be anyone removed very easily beyond the historic levels of the Obama Administration.”

Same as the old boss

Which is an important note: Though our current president has introduced (or attempted to do so) a whole lot of immigration reform initiatives, he’s still seen more people deported under his administration than ever before. Since taking office in 2009 he’s deported 2.5 million. Though Trump has come under fire for problems with racism and white supremacy, it’s possible that his immigration platform won’t be black and white, good and bad, just as Obama’s wasn’t.

“What I think is will likely happen is there will be no new approvals. There will instead be an allowance of individuals to ride out existing grant of benefits, and not have to consider option abruptly,” said Paparelli, who notes that Obama himself called Trump a “pragmatist” in his policies. “Everyone of these folks has been screened already to eliminate grants to people of national security concern or with criminal backgrounds. It’s a relatively intact, so-called “safe” population, making it an unnecessary battle—at least initially.”

But many pro-immigrant groups aren’t as certain about it. Rep. Judy Chu has formally asked Obama to shield the information of the “Dreamers” from the DACA initiative from the new administration.

Photo Credit: Gage Skidmore cc

Photo Credit: Gage Skidmore cc

“These children and families provided extensive amounts of sensitive information to their government, including fingerprints and relatives’ home addresses, with the understanding that it would not be used against them. We promised them security,” Chu said in a statement. “Now they are facing a nightmare. When we asked immigrants to come out of the shadows, we never imagined the election of a candidate who ran on a policy of mass deportation.”

Even cities that have sworn to stand up to Trump on immigration aren’t certain about their futures. On the campaign Trump included promises to go after sanctuary cities, and so far he hasn’t touched on how much he intends on following up with that. After all, many of the tools are already in place. As Vox writes:

Even if the Trump administration only used half of the tools that Bush and Obama developed — even if it, in practice, wasn’t any more aggressive in immigration enforcement than either of its predecessors — it would put immigrants under a constant cloud of fear.

In theory, that fear would be the point — it would be a reminder that violating immigration law has consequences.

This isn’t the ceiling for what a Trump administration can do on immigration enforcement. It’s the floor. The deportation machine is there — it’s been built by two past presidencies. President-elect Trump and his team could do unprecedented damage just by turning on all the switches at the same time.

It’s almost certainly going to be more complicated than just taking the 1.4 million applicants and recipients of DACA as a deportation hit list. But much of Trump’s fiery and offensive rhetoric—his choice for cabinet members, his 60 Minutes interview, and his initial 100 day plan—seem to suggest that immigration reform is high on his to do list in some form.

Resisting arrest

For DACA recipients there may be safeguards (or some facsimile of them) in place to help protect them, much like the funding snafus Paparelli mentioned.

“[Many] of DACA recipients have found employment; they’re integrated into the business community and become more public in their integration into society. Revoking that would likely trigger substantial protests,” said Paparelli.

AILA agrees with him: As of June 30, 2016, USCIS has approved close to 750,000 DACA applications with 525,000 plus DACA renewals since they began accepting applicants in 2012. That’s a fair amount of political clout.

“The political power of the DACA population and immigration advocates should not be underestimated, and the Trump Administration will likely balance the above options against the political repercussions it would face by targeting a compelling population that generate sympathy with the public,” said AILA.

And we’ve already seen that happen, with substantial protests against Trump’s presidency; cities like Seattle, New York, and Chicago promising to be “sanctuary cities” to not follow federal orders to deport immigrants; and police departments like Los Angeles’, which also say they will continue to change the LAPD’s refusal to enforce federal immigration policies.

Whether we reach the worst case scenario for these areas—cities being refused federal funds, or even something more drastic—is something some activists are steeling themselves for. Dreamers, at least, can take some solace in that it seems increasingly unlikely their approval will be used up overnight on January 20.

“It’s unclear whether a Trump administration will cancel the existing permits,” wrote Susan Cohen. “As a practical matter, ICE does not have enough personnel (now) to round up all these people and put them into deportation proceedings.”

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