In my first year of college at Columbia Gorge Community College in Hood River, I formed the Multicultural Club. Our first event was the screening of “Paper: Stories of Undocumented Youth.” The film is about the challenges of being an undocumented youth in this country. My adviser and I believed that the film was the appropriate avenue to educate our community about immigration, and it indeed attracted a good crowd at the college’s first student organized event.
High school teachers, counselors, and principals know the story well. Hundreds of thousands of undocumented students graduate from high school every year, and their unlawful status in this country suddenly becomes an interlude in their search for higher education. State universities would not accept applications without a social security number, and undocumented students are ineligible to receive any financial aid. Their lives are enmeshed in an amorphous cloud of uncertainty after high school graduation.
Instead of reconciling to a dire future in this country, undocumented students exerted their talents and told their stories to the American people: They are not different from their classmates, except that they lack papers. The American people listened. Educational institutions and politicians soon recognized undocumented students’ quest for knowledge and their desire of forming part of the only country they call home.
The first attempt to protect undocumented students was introduced in Aug. 1, 2001, through the Development, Relief, and Education for Alien Minors Act (DREAM). The DREAM Act is a legislative bill that would create a process for undocumented students to apply for conditional residency, leading to permanent residency. The bill has failed to pass in Congress in multiple introductions.
President Obama’s promise for change accelerated Dreamers’ advocacy efforts for a path to citizenship in this country. In response to the failure of Congress to pass the DREAM Act, the Obama Administration sought its own initiatives to protect Dreamers from deportation. In June 2012, then Secretary of the Department of Homeland Security (DHS) Janet Napolitano exercised the Executive’s prosecutorial discretion in the form of “deferred action” to grant relief from deportation to Dreamers through the Deferred Action for Childhood Arrivals (DACA) policy.
DACA has been a fervent relief from deportation for more than 800,000 Dreamers. Its beneficiaries are able to apply for employment permits, a drivers’ license, and even financial aid in some states. However, in Sept. 5, 2017, the Attorney General advised Acting Secretary Elaine C. Duke of DHS to terminate DACA in an efficient wind-down fashion. The termination of DACA was challenged in multiple federal district courts, all ruling in favor of keeping DACA in place because Duke’s memorandum had failed to provide an adequate rationale for terminating the Obama initiative.
The District Court for the District of Columbia gave DHS 90 days to reissue a memorandum to terminate DACA. The new memorandum would be drafted by then Secretary of DHS Kirstjen Nielsen. Secretary Nielsen, however, simply revised the Duke memorandum by reaffirming her concerns about the legality of DACA as first declared by the Attorney General. The District Court once again rejected Secretary Nielsen’s revised memorandum, and the government simultaneously asked the Supreme Court to review the case. The Supreme Court heard the oral arguments in Nov. 12, 2019.
In that historic hearing, the justices concurred that the president has the authority to terminate DACA at any time. However, they questioned Secretary Nielsen’s conclusion that DACA was “unlawful” as the only basis for the termination of the initiative. All justices seemed to agree that Secretary Nielsen’s memorandum failed to consider Dreamers’ interests in living and working in the only place they call home.
Justice Breyer stressed the numerous organizations and states 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.”
Chief Justice Roberts alluded to a clear distinction between “deferred action” and the benefits (work authorization) that come along with DACA. The nature of “deferred action” was not important for him. He was concerned about the benefits triggered by DACA, which he believes can be challenged on legal grounds.
In a 5-4 vote, the Supreme Court ruled in favored of Dreamers in June 18, 2020. Justice Roberts wrote the Opinion to the Court. First, the Court refused to consider Secretary Nielsen’s expanded memorandum because she “chose not take new action” and instead simply expanded the Duke memorandum. Second, the Duke memorandum failed to consider the option of retaining “deferred action.” The failure to treat “deferred action” and the “reliance interests” as independent matters renders the Government’s decision to terminate DACA “arbitrary and capricious.”
The Supreme Court’s Opinion orders the government to keep DACA in place as first implemented in 2012, meaning that the government should accept new DACA applications. However, U.S. Citizenship and Immigration Services (USCIS) released an opposing statement to the Court’s decision, and it is unclear whether USCIS will accept new DACA applications. USCIS is only accepting DACA renewals at the moment. Dreamers who qualify for DACA are advised to seek legal advice if they wish to submit a DACA application for the first time.
The highest court in the land has legitimated Dreamers’ efforts to stay in this country, but only Congress can put Dreamers in a path to citizenship. We must continue and intensify our advocacy efforts to get Congress to act in comprehensive immigration reform.
Abel Cruz Flores is in his final year as a PhD student at Georgetown University. He graduated from Columbia Gorge Community College Hood River Campus in 2010. He is an advocate for immigration reform.