Multiple immigration attorneys who spoke with States Newsroom said they expect a decision on the legality of DACA, when it eventually goes to the U.S. Supreme Court, to not be issued until 2024. Drew Angerer/Getty Images
WASHINGTON — Karen Judith Briseno Ortiz mailed in her application for a program meant to protect undocumented children from deportation, one day after her twin sister’s application.
Her sister was accepted into the Deferred Action for Childhood Arrivals program, but Briseno Ortiz, who grew up in Dallas, was not. Now her application is in limbo due to an injunction placed by a Texas federal judge, who determined the Obama-era program was unlawful.
“That opportunity got taken from me,” she said of Texas District Judge Andrew Hanen’s decision, which prevented the government from accepting new applicants into the program, but allowed it to remain for current participants as it undergoes litigation.
Multiple immigration attorneys who spoke with States Newsroom said they expect a decision on the legality of DACA, when it eventually goes to the U.S. Supreme Court, to not be issued until 2024. Congress appears unlikely to take action, although immigration advocates have suggestions about policy initiatives the Biden administration could study for DACA recipients.
In the meantime, they must wait.
One legal to work, one not
Briseno Ortiz and her sister, now 20, live together and attend Texas A&M University.
One twin is allowed to work, because DACA gives her access to work permits and a Social Security number.
But Briseno Ortiz, a chemistry major, cannot get work permits and will likely have to leave her home state to attend medical school, since there is only one medical school in Texas that admits DACA students.
The program, which has protected more than 800,000 undocumented children from deportation since 2012, is at risk of being deemed unlawful, leaving recipients in limbo and uncertain if they will be protected from deportation.
Briseno Ortiz is the only one of her three siblings not in the program, despite being eligible for DACA. The Migration Policy Institute, a think tank that tracks migration, estimates that as of December 2021, there are 1.5 million undocumented people who are DACA-eligible but not enrolled.
“It’s frustrating because we’re just waiting,” Briseno Ortiz said of her application and others that are still pending due to the injunction.
DACA legal challenges
The Trump administration tried to rescind the program in 2017. That is the same year the twins turned 15, making them eligible for DACA.
When the Supreme Court in June 2020 deemed the Trump administration’s actions were unlawful, the U.S. Citizenship and Immigration Services should have begun to accept first-time DACA applications, but the Trump administration didn’t.
It wasn’t until December 2020 that USCIS complied and opened up applications for first-time applicants, which is when Briseno Ortiz and her sister sent in their applications. Her twin’s paperwork was sent on Dec. 22 and hers on Dec. 23, 2020.
They sent their applications one day apart to avoid any confusion with immigration officials or hold-up with their applications because they share the same birthday and first and last name.
Briseno Ortiz’ twin was accepted in DACA in June 2021, just before Hanen’s decision, which barred future applications, but allowed for renewals. This stems from a lawsuit brought by Republican-led states that argue the program is burdensome to states and the government overreached its power in creating the program.
Briseno Ortiz said she feels helpless waiting for the court to make a decision.
The Biden administration appealed that July 2021 decision to the 5th Circuit Court of Appeals, headquartered in New Orleans. A three-judge panel said that the Obama administration did not have the authority to create the program in 2012 and sent the case back to Hanen.
The panel asked the judge to look at the new version of a rule on the program issued by the Biden administration in August 2022, which was set to take effect on Oct. 31.
As of now, the lower court is hearing arguments about whether the Biden administration’s new rule, which is nearly identical to the memo creating DACA, is lawful. A schedule for that case has not been set yet.
“But advocates are not very hopeful that the decision coming out of this court will be positive or in favor of DACA,” said Veronica Garcia, an attorney at the Immigrant Legal Resource Center.
She said the best case scenario is if DACA gets struck down, renewals will be allowed to continue while the case then goes to the Supreme Court.
Muzaffar Chishti, an attorney and director of the Migration Policy Institute office at New York University School of Law, said he believes the Biden administration has given DACA more legal standing by writing a rule on the program, rather than having it as a memo, which the Obama administration crafted.
“That doesn’t mean that it will not be ruled unlawful, but it’s in a much better legal footing,” he said, pointing out that when Hanen first looked at the Obama-era program he decided that the administration overreached its power in creating the program through a memo, rather than proper rule making.
Chishti said that in many ways, the Biden administration has already responded to Hanen’s arguments by going through the rule making process in creating DACA.
He added that briefs in the case can be filed through April, meaning that a date for oral arguments won’t be set until after that.
“I don’t think we’re looking at a decision in this case till at least the summer,” Chishti said.
Then, once the case is appealed to the 5th Circuit, as expected, and then the Supreme Court, Chishti said he doesn’t expect a decision until the spring of 2024 or later.
“So that means there’s nothing imminent wrong potentially happening to the existing DACA recipients,” he said.
DACA ‘is outdated’
Juliana Macedo do Nascimento, the deputy director of federal advocacy of United We Dream, said DACA could be ended as early as next year by the Supreme Court, during the Biden administration, “which would just be a shame given his history, and his legacy with the program.”
United We Dream is a nonprofit youth immigration advocacy group.
“DACA was never enough, and it’s outdated,” she said, adding that there are 11 million undocumented people in the country who also need protections.
Macedo do Nascimento pointed out that undocumented youth who would be eligible for the program can’t qualify because they were not born by 2007. In order to qualify for DACA, undocumented youth had to have continuingly resided in the U.S. from 2007.
“We know that immigrant youths who are turning 15, 16, who would otherwise be eligible for it, are no longer eligible because they weren’t even alive in 2007,” she said.
So far, the only thing that would change DACA is an act of Congress, she said.
Briseno Ortiz said she doesn’t have much hope that Congress will take legislative action to protect DACA recipients, and sees the only course of action to get involved in immigration advocacy groups.
Even when Democrats controlled the U.S. House last year, Democrats in the Senate did not have the votes to overcome the 60-vote threshold requirement.
Last year, Senate Democrat leaders set a December deadline of passing any bipartisan legislation to create a pathway to citizenship for DACA recipients.
With the House majority won by Republicans in the 2022 midterm elections, Democrats only had a couple of months to pass any legislation protecting DACA before they lost the House.
There were some talks of a bipartisan agreement with Sens. Kyrsten Sinema, a Democrat from Arizona who’s now become an independent, and Thom Tillis, Republican of North Carolina, but nothing solidified.
Even with Congress gridlocked, Macedo do Nascimento said, the Biden administration still has some policy initiatives it can take to protect those in DACA, such as through Temporary Protected Status, which is granted to those who are already residing in the U.S. but whose home country is deemed unsafe for return, and allows those recipients to stay in the U.S. temporarily, or Deferred Enforced Departure.
The departure program is not a specific immigration status, but allows those covered to be exempt from deportation for a certain period of time.
The administration could also include countries with a high number of DACA recipients for TPS, such as Mexico, Macedo do Nascimento added.
“The parole authority that the administration has is really powerful, and they can use that to protect people,” she said.
New parole program
Early this year, the Biden administration announced a new parole program that would expand opportunities for migrants from Cuba, Haiti and Nicaragua to legally enter the United States.
The program will allow up to 30,000 migrants each month from those countries who have U.S.-based financial sponsors and have passed a background check to enter the country legally. They would be allowed to work temporarily for two years.
Macedo do Nascimento said the Biden administration could work to implement a similar parole program for those under DACA.
“We’re hopeful that they’re looking into these other options on how to use different tools to … protect people,” she said.
Democrats and immigration advocates welcomed the new parole program, but criticized the administration’s continued use and expansion of Title 42, which is a controversial policy that immediately turns away migrants at the U.S.-Mexico border during a health crisis, such as the coronavirus pandemic.
However, those parole programs that the Biden administration has implemented are already facing legal challenges from Republican-led states.
The White House did not respond to States Newsroom’s requests for comment on its plans pertaining to the potential ending of DACA.
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