DACA does not confer lawful status upon an individual, but it provides undocumented immigrations a means to work and live in the US
Immigration officers now have unfettered discretion to deport anyone charged with any criminal offense
The Trump administration on Tuesday delivered its most explicit embrace yet of Obama-era protections for young undocumented immigrants – while at the same time issuing new rules that immigration advocates fear effectively chips away at the previous barriers to deportation.
Newly released memos from the Department of Homeland Security leave intact two specific executive orders from President Barack Obama that granted protection from prosecution for so-called Dreamers, young immigrants who were brought to the US as children, and a second one that included parents of US citizens and legal residents.
“None of this affects DACA,” the name of the deferred action program, a Homeland Security official told reporters Tuesday. While Obama’s second executive order (DAPA) was untouched by the Trump administration, it has been blocked by the courts and is still tied up in legal action.
The preservation of the Obama-era policies comes after Trump has attempted to tread carefully on DACA, walking a line between Republicans who want the program cut entirely, and the political and practical impact of eliminating protections for undocumented immigrants.
“We’re gonna show great heart,” Trump said in a news conference last week. “DACA is a very, very difficult subject for me, I will tell you.”
But he also spoke of possible abuses of the DACA program.
“To me, it’s one of the most difficult subjects I have because you have these incredible kids, in many cases, not in all cases. And some of the cases, having DACA and they’re gang members and they’re drug dealers, too. But you have some absolutely, incredible kids, I would say mostly. They were brought here in such a way – it’s a very – it’s a very, very tough subject.”
White House press secretary Sean Spicer Tuesday explicitly said “no” when a reporter asked if the memos could be read as settling the matter for good.
“Everyone who is here illegally is subject to removal at any time,” Spicer said of the DHS guidance. “But the priority that the President’s laid forth and the priority that ICE is putting forward through DHS’ guidance is to make sure that the people who have committed a crime or threat to public safety are the priority of their efforts, first and foremost.”
While the memos leave DACA and DAPA as an exception, they also make clear that any undocumented immigrant charged with a crime is now eligible for removal and no undocumented immigrants will be exempt from deportation proceedings.
Immigration advocates have long been unsatisfied with Trump’s focus on removing “bad” people. They point to his aggressive anti-immigrant rhetoric on the campaign trail, including his very first campaign speech identifying many Mexican immigrants as criminals and rapists, without evidence.
They see this guidance as more of the same – lip service to the good guys, while still maintaining avenues for labeling anyone a “bad” guy.
“The President made clear that they don’t yet have a plan on DACA, and the guidance issued today doesn’t add anything to that,” said Kamal Essaheb, director of policy and advocacy at National Immigration Law Center.
“But we know better than to take DHS at its word on the issue: last week, we saw a breathtaking disregard for the protections promised under DACA or for sensitive locations,” Essaheb added. “We cannot at this time offer a confident assessment of whether anyone – including those with DACA – are protected from enforcement.”
The DACA protections set up a procedure for verifying the roughly 750,000 participants in the program, including background checks. In exchange, the recipients receive permits to work and seek education in the US, though they do not receive citizenship or legal status.
The goal of the program is to allow such young people – many of whom have lived the majority of their lives in the US – to contribute to their communities without living in fear of being deported if caught.
But despite DHS’ assurances that their increased enforcement does not affect DACA recipients, the community remains concerned that everyone is a target.
“These memos lay out a detailed blueprint for the mass deportation of 11 million undocumented immigrants in America,” said Lynn Tramonte, deputy director of America’s Voice Education Fund. “They fulfill the wish lists of the white nationalist and anti-immigrant movements and bring to life the worst of Donald Trump’s campaign rhetoric.”
Seattle case reverberates
The arrest of Daniel Ramirez Medina – a 23-year-old man who came to US illegally as a young child – became a flash point for immigration-rights advocates earlier this month, as he had twice been granted deferred action and employment authorization under the DACA program.
Ramirez’s lawyers call him a “law abiding” young father, but federal immigration officials say he is a gang member, issued him a “notice to appear” at immigration removal proceedings, and have terminated his DACA protection.
Conflicting factual accounts aside – immigration experts say that from a practical standpoint, once the government alleges an immigrant is gang-affiliated, it’s challenging to succeed in immigration court.
“There is no standard that ICE has to put forward to allege gang affiliation – they can just say it,” according to Heidi Altman, director of policy at the pro-immigrant National Immigrant Justice Center. “Evidence can be as little as a picture on social media with someone who is ‘gang-affiliated.’”
“It’s very difficult for judges to look past the allegation once it’s been made, and because discretion is paramount in immigration court that’s often the end of the story,” she added.
Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School, further explained because that immigration courts are considered civil, not criminal, proceedings, regular due process protections do not apply in the same way.
Undocumented immigrants who wind up in removal proceedings “are not entitled to a court-appointed attorney, the standard rules of evidence do not apply, (and) hearsay can come in,” Yale-Loehr said.
But DHS has also released DACA recipients since the new executive orders, including a San Antonio teen who was picked up on low-level marijuana charges.