Since its inception in 2012, Deferred Action for Childhood Arrivals (DACA), has been the subject of legal fights and political sparring. The program, which grants certain young people protection from deportation, was first implemented by the Obama Administration via executive action, and in the decade since, Congress has never passed legislation into law that would make it permanent.
Now, DACA recipients, advocates, and political scientists say the program may be reaching the end of its slow demise—unless Democrats in Congress step in to save it.
“The 2012 DACA program is hanging by a thread and on life support,” says Tom Wong, associate professor of political science at the University of California, San Diego. “We are at a point now where unless there’s a legislative solution to provide permanent protections for DACA recipients, many will likely lose what they have built over the last decade.”
In early October, the Fifth Circuit Court of Appeals sided with a lower court questioning the legality of the DACA program and halting its expansion to new applicants. The appeals court said the roughly 600,000 current DACA recipients or “Dreamers”— young people who were brought to the United States as children and did not have the immigration status to legally reside and work in the U.S.—can keep their status for now, but no new applications can be processed.
Texas, along with eight other states, originally filed suit in 2018, arguing that the Obama Administration did not have the authority to implement DACA in the first place. District Judge Andrew Hanen of the Southern District of Texas agreed and declared DACA unlawful in July 2021, and the Biden Administration appealed to the Fifth Circuit.
Earlier in 2021, President Joe Biden had issued a memorandum in an attempt to “to preserve and fortify DACA.” The new Biden version of DACA, which is essentially the same policy, but codifies it into federal regulation, is set to go into effect on Oct. 31, 2022. But on Oct. 5, the Fifth Circuit Court of Appeals sided with Judge Hanen, and it required Hanen to also review the legality of the new Biden DACA memo. “We have to continue to hold our breath and hope that Judge Hanen doesn’t wake up one morning and decide to end [DACA],” says Greisa Martinez Rosas, executive director of United We Dream, which advocates for a pathway to citizenship for Dreamers. “DACA as we know it is dying, and this was a lethal blow to the program.”
Amid the legal uncertainty, and with Democrats expected to lose control of at least one chamber of Congress in the midterms, some see a window of opportunity closing to pass legislation codifying permanent protections for Dreamers. Others say they are clinging to hope that Democrats could muster legislation during the lame duck session.
Still, even with their current control of Congress, Democrats enjoy the slimmest possible majority in the Senate. Passing legislation would require 60 votes to overcome a filibuster, which would mean getting at least 10 Republicans on board. Despite a successful effort by the House in 2021, a DACA bill went nowhere in the Senate. And Sen. Dick Durbin, a Democrat from Illinois, has tried to pass a law that would create a pathway to citizenship for Dreamers for more than 20 years, but Republicans and some Democrats have blocked it from passage five separate times.
Durbin relaunched negotiations with Senate Republicans on immigration reform last year, but the talks so far haven’t yielded legislation. “I have been working for the last 20 years to provide these inspiring young people with a permanent path to legal status,” Durbin tells TIME in a statement. “The recent Fifth Circuit decision should be a call to action for my colleagues on the other side of the aisle. We must pass the Dream Act now and give these amazing young people a real path to legal status in the only country they have ever called home.”
Wong argues that Democrats, too, need to change their posture towards immigration reform in order to pass anything meaningful. “A lot of Democrats who are looking at their reelection prospects don’t want to talk about immigration in a sincere and genuine way,” Wong says, “in a way where we can actually see some compromise happen in the Senate that leads to those 60 votes.”
If Democrats lose control of Congress in November, some advocates and lawmakers are still hoping they’ll propose legislation in the lame duck session—the period of time after the midterms before the newly elected leaders take office—to try to pass it while they still have the majority. Martinez Rosas says United We Dream plans to escalate actions and pressures to push Democrats to pass protections for Dreamers during lame duck.
Sen. Alex Padilla, a Democrat from California who introduced legislation in September that would create a pathway to citizenship for immigrants who have resided in the U.S. long term, including DACA recipients, tells TIME that he hopes DACA and immigration reform measures would be a priority during the lame duck session.
“I still think there’s a press for… codifying a woman’s right to choose, trying to move forward on immigration reform,” he says. “We’ve got a lot of work to do.”
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