#HomeIsHere. #HereToStay. These rallying hashtags unite Dreamers and their advocates fighting for permanent immigration relief in the U.S. Thanks to the U.S. Supreme Court’s recent decision, DACA is #HereToStay—for now.
But in the long term, Congress is the only branch that can permanently, truly declare that #HomeIsHere for Dreamers.
The Supreme Court’s 5-4 decision permitting DACA to continue was another twist in the long road of ups and downs for Dreamers—from the initial Development, Relief, and Education for Alien Minors (DREAM) Act proposed in 2001 and derailed by September 11; to the DACA executive order in 2012; to the expanded DACA program that, along with DAPA (Deferred Action for Parents of Americans), was enjoined in 2015.
Over the last two decades, at least 10 variations on the Dream Act have been proposed but failed, including the Senate-passed Comprehensive Immigration Reform bill of 2013 (which did not advance in the House). Given this history, it seems unwise to hold out hope for congressional action for Dreamers. Nevertheless, a legislative solution is the necessary next step for at least two major reasons.
Not Meant to Be Permanent
First, as an executive order, DACA is an ephemeral stopgap measure with no long-term viability. Its very parameters show that it was never intended to be permanent. For example, DACA is only available to immigrants who, among other requirements, have been living in the U.S. since June 2007. Any new applicant today will face the challenging task of demonstrating, through concrete evidence like bills and school records, that they have been in the U.S. for the last 13 years.
Further, many young people who identify as Dreamers are simply ineligible under now-outdated rules like the one above. And those who have it must renew every two years, an endless cycle of uncertainty with no path to citizenship.
Second, DACA is clearly vulnerable to rescission and lawsuits that severely limit its utility. As an example, no new DACA applicants have been able to apply for almost three years because of the Trump administration’s attempt to rescind it (which should change now). And while DACA continues, the Trump administration has signaled that it will attempt to rescind it once again. And now it has handy guidelines described in the Supreme Court’s decision.
While the court determined that the administration’s rescission memo was invalid under the Administrative Procedures Act, all parties to the DACA lawsuit agreed that the administration does in fact have the power to rescind the program—it’s a matter of ticking all the right boxes. Again, this creates deep instability for DACA holders.
Thus, Congress alone holds the power to resolve the fate of Dreamers.
The most recent federal legislative proposals include H.R. 6, known as the American Dream and Promise Act of 2019 in the House and S.874, the Dream Act of 2019, in the Senate. The House passed H.R. 6 over a year ago, but the Republican-controlled Senate has yet to consider it. The Senate’s parallel bill has been languishing in the Committee on the Judiciary since March 2019. Its provisions are substantively almost the same.
The House bill would grant conditional (i.e. temporary) residence to immigrants who meet numerous requirements that, in effect, show that they are integrated into American society in a meaningful and traditional way. Eligible immigrants include those in temporary status, such as DACA, and those with no status who can meet requirements similar to DACA.
The bill expands certain eligibility parameters, such as requiring only four years of continuous physical presence in the U.S.—much more reasonable than the 13 years currently needed for DACA. It also qualifies anyone who entered the country prior to age 18, rather than 16, as under DACA.
The bill also contains many hallmarks standard to immigration law and which align it better with the rules for other immigration relief. For example, the bill adjusts the DACA criminal bars so that they align with those that bar foreign nationals from admittance to the U.S.
A unique component of this bill is that applicants must qualify to shift from conditional to permanent residence by meeting one of three “tracks” to eligibility. They must have either:
- completed some higher education;
- honorably served in the U.S. military; or
- been employed for at least 75% of the time they have had work authorization and for at least three years.
Most other forms of immigration relief with such requirements are study- or work-based visas, rather than a part of a broader humanitarian-style bill. These requirements may help the bill seem more palatable to those who are averse to “rewarding” those who did not go about immigrating in “the right way,” but they neglect and implicitly disparage immigrants who could not take such paths but who have contributed in other ways.
These tracks also create practical barriers for some applicants. While the bill contains appropriate hardship waivers for individuals with disabilities or primary caregiving responsibility, these vulnerable applicants will have a more complex and uncertain application process.
Nevertheless, this bill would overall be a welcome, appropriate, and overdue exercise of Congress’ lawmaking power.
The Senate now has the next move—mostly likely by taking a vote on the House’s Dream Act. As these bills linger before Congress, DACA recipients and their families have some temporary breathing room thanks to the Supreme Court decision. However, Dreamers are still waiting for a permanent, legislative answer.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jaclyn Kelley-Widmer is an assistant clinical professor of law at Cornell Law School, where she teaches Lawyering and directs the 1L Immigration Law & Advocacy Clinic. She has represented clients in DACA cases since 2015 in the nonprofit sector and through her clinical practice. You can follow her on Twitter @jkelleywidmer.