DACA/DREAMERS' Window for Legalization Is Disappearing

By Peggy Orchowski

On July 16, 2021, a federal court judge declared DACA to be illegal. The Deferred Action for Childhood Arrivals program that President Obama created by executive memo in June 2012, gave some 900,000 initial successful individual applicants a temporary two-year waiver from deportation and a work permit. Now some 650,000 current DACA recipients may see the program end in 2022. 

Current DACA recipients are now mid-20-30 years old illegal immigrants (or "documented undocumented immigrants" if you will) who came into the country before 2007 and before they were age 16. At the time of application they had to be in "unauthorized" status and planning to attend college. "DACA did not legalize the grantees," Obama constantly reminded people. "Only Congress can do that; Presidents can't". 

In 2012 Obama intended DACA to be only a temporary, two-year protection program. He ordered his Secretary of Homeland Security Janet Napolitano to issue the three-page executive memo in order to appease Latino activists during the crucial presidential election year-summer of 2012 when some threatened to support the Republican candidate Sen, John McCain of Arizona who advocated for the legalization of DREAMERS. Obama expected that early in his second term, Congress would pass a law to give DACA recipients legal status. But that didn't happen.  

 Although the idea of DACA always has been popular with a small majority of Americans, it was increasingly marketed under a false premise. To this day, the spun narrative of DACA beneficiaries repeated by just about everyone across the political spectrum is: "little children brought in illegally by their parents at an early age and for whom the United States is the only country they've ever known". Sigh! Who wouldn't be for legalizing this extremely sympathetic group!  They should be.

Problem is, that is NOT the definition of DACA recipients, as clearly spelled out in the three page DACA order. The real definition for DACA status is anyone who "came in to the United States before age 16". The verb "brought in" and words "by parents" "illegally", do not exist.  "Came in" is a far different image than that of the little child ("infants" many say in hushed tones) "brought in" illegally clutching the hands of loving parents. Today DACA recipients are in their mid to late 20s; many came in alone as migrants, teenage visitors and dependents of legal temporary work visa holders. As adults those on legal temporary permits decided to overstay them, to become unauthorized and to wait for programs like DACA/DREAMERS to give them green cards.

DACA soon became completely politicized. By 2013 it had become an open bait and switch in the never-ending duel by Democrats to pass ever-larger totally opaque comprehensive immigration reform bills; while Republicans dug in their heels to pass immigration reform only in small pieces. DACA and its corollary the never-passed DREAM Act got caught in the middle.

DREAMERS and DACA are different although the media and advocates continually conflate the two. The DREAM Act has gone through many versions since first dreamed up in about 2005 by former Republican Senator Orin Hatch (UT) and his great friend liberal Sen. Ted Kennedy. (MA). The current 2021 version proposed by Senate Leader Chuck Schumer (NY) would legalize some 4-8 million unauthorized migrants who came into the U.S. before the age of 18 four years before enactment of the law, even if they had been deported.  Most beneficiaries of the blanket Dream Act would not qualify for Obama's DACA program.

DACA is now likely headed to the Supreme Court to determine its constitutionality. A positive ruling seems increasingly unlikely. In June 2021, SCOTUS ruled that thousands of legal temporary permit holders (H1Bs, etc.) under Temporary Protected Status who initially came into the country illegally, could not constitutionally be legalized by Congress under current immigration laws. DACA recipients could fall under the same category.

Immigration will be a prominent issue in the 2022 election battles to control Congress and the Senate, and probably in the 2024 presidential election as well. DACA is the tip of the iceberg. The uncontrolled surge of tens of thousands of mainly teenagers crossing the southern border illegally since January, is changing Americans' tolerance for teenage undocumented immigrants. 

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