DACA at 10 YO: Used as Bait: Spun to Death! Now an Adm Law

By Peggy Orchowski Ph.D.

Eleven years ago on May 2011, I and some 10,000 members of Latino activists' largest organization La Raza (now called Unidos) witnessed President Barrack Obama at DC's OmniShorham Hotel say "I can't do it" (NO se puede) to hundreds of students chanting "legalize the Dreamers".  "Only Congress can change immigration laws," he said repeatedly.

Fast forward one year later and Obama's poll numbers for his second term are falling.  Congressman Luis Gutierrez (D-IL)threatened that Latino legislators would not contribute to Obama's campaign if he didn't legalize the over 12 million immigrants currently living and working illegally in the country – most of whom were from Mexico. So on June 2012 Obama suddenly announced he had issued an executive memo to his Secretary of Homeland Security - Janet Napolitano – to operationalize immediately a program, called Deferred Action for Childhood Arrivals. DACA would grant some 900,000 unauthorized immigrants who applied individually, a two-year deferment from deportation and a two-year work permit. 

DACA never conferred legal status on the DACA recipients however. They are still "illegal immigrants" – or in this case, documented "undocumented people".  It was supposed to last only until Obama was re-elected a second term and them it was assumed that comprehensive immigration reform would pass (it did in the Democratic Senate in June of 2013, but the Republican-led House insisted it be presented piecemeal). So DACA kept getting renewed.  And when President Trump was elected and tried to rescind it, - as was his constitutional right - a number of court cases ensued that has kept it alive. But no new applicants. The current recipients shrunk to some 600,000 from over 800,000, and are "in status limbo".

That said, DACA was a brilliant idea.  It was seen as helping innocent children ("infants" many said) who had been brought into the country illegally by their loving parents and only knew the USA as their homeland. Or so the unquestioned narrative became.

The truth is, the three-page DACA memo (not even an order) has been spun from the first day.  The basic requirement is ONLY 10 words long: anyone "who came into the United States before the age of 16" . NOTE: not one word about being "brought in" "illegally" by "loving sacrificing parents". No infanthood required. Here all their lives? only have to have lived here five years before DACA's date of passage. And there is not an English language requirement in sight. A GED or its "equivalent" is the only education required. And there is no limit to minor misdemeanors (including lying about age of entry) and "non serious" felonies that a DACA can commit and be deported. Even if they are in deportation proceedings, they won't lose their work permit.  

Of course by now almost 100 percent of the recipients are in their 20s and 30s --NOT children. Many came in legally. In fact, DACA was becoming known as the biggest incentive to overstay a visitor, student, dependent visa, etc. -- the best way for young people to circumvent immigration law and from which to advocate for a "pathway to citizenship" (ie: a green card).  

But no one in Congress wanted DACA to pass by itself as a stand-alone bill. It was too good as bait for other things. So in short, DACA became a cover, a bait and switch for Democrats for comprehensive immigration reform and for Republicans for expanding internal immigrant enforcement. DACA also became a great cause for politicians four to five months out from a difficult election, to show empathy for America's suddenly most favored "minority" group: illegal immigrants.  

Which brings us to August 24, 2022.  In a surprise move, the Biden Administration's Department of Homeland Security rescinded the DACA executive memo! Then they replaced it with a registered federal regulation (aka an "administrative law" – NOT a law passed by Congress) that supposedly protects it from being rescinded by a new administration.  It also went through a public comment process that the original program did not. 

But nothing really changes.  DACA eligibility requirements and program restrictions remain, the same and several court cases that could end the program remain in play. The rule will take effect October 31, 2022, presuming no legal challenges are launched against it.  But a federal lawsuit in Texas ruled that DACA was illegal and ordered a freeze on all new applicants until the policy's merits are decided in court. The 5th Circuit Court of Appeals in New Orleans, Louisiana, heard oral arguments in early July. It could rule on the fate of DACA at any time. Many observers predict the court will rule against DACA, sending the case to the U.S. Supreme Court.

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