DACA, explained: why Donald Trump holds the fate of a generation of immigrants in his hands

For five years, hundreds of thousands of immigrant teenagers and young adults have been able to go about their lives in the US without constant fear of deportation. They’ve been able to get jobs (and build careers) legally, drive to and from college with valid drivers’ licenses, and buy homes without worrying they’ll be forced to abandon them.

That period may be drawing to a close.

After months of indecision, President Donald Trump may be about to end the Deferred Action for Childhood Arrivals program started by President Obama in 2012 — which allowed young unauthorized immigrants who’d come to the US as children to apply for temporary protection from deportation and work permits.

Trump will have to make a decision one way or the other before September 5 — when a group of state officials have threatened to sue the administration over the continued existence of DACA — and the latest reports from inside the White House, via Axios, are that he’s leaning toward eliminating it.

For some in Trump’s administration, the decision to end DACA can’t come too soon — they view the program as an unconstitutional “amnesty” of the kind Trump promised to end when he arrived in office. For others — and for many Republicans — ending DACA would mean touching a political third rail, and threatening to undermine the Trump administration’s claims that their renewed immigration crackdown is only going after criminals and “bad hombres.” For Democrats, it would be a shot across the bow.

And for the immigrants protected by DACA themselves, an end to the program would knock out the foundation they’ve been beginning to build under themselves during their half-decade of protection — and force them to make some very difficult decisions about what to do next.

DACA was an attempt to guarantee protection from deportation for some “low-priority” immigrants

DACA was designed to help a generation of immigrants known as “DREAMers,” after the DREAM Act, a recurring proposal to allow unauthorized immigrants who grew up in the US to gain legal status and eventually apply for citizenship. The DREAM Act has been bouncing around Congress since 2001 (many of the immigrants who would have been helped by it then are too old even to be eligible for DACA today), but the most serious attempt to pass it came in December 2010, when it passed the House but failed to get the 60 votes needed to overcome a filibuster in the Senate.

At the time, President Obama claimed that the immigrants who would be eligible for legalization under the DREAM Act weren’t being deported anyway, since his administration was targeting “high-priority” immigrants (like those with criminal records) rather than “low-priority” immigrants who’d lived quietly in the US for years. But federal immigration agents were still deporting “low-priority” immigrants, including DREAMers — Obama’s words were proven empty by his administration’s deeds. So in summer 2012, rather than relying on Immigration and Customs Enforcement agents to passively protect immigrants by declining to deport them, the administration decided to allow DREAMers to apply proactively for protection from deportation themselves.

In June 2012, President Obama announced the Deferred Action for Childhood Arrivals program. It allows young unauthorized immigrants who meet certain criteria to apply for a commitment from the federal government for "deferred action" — that is, a commitment not to initiate deportation proceedings against the applicant — for two years. Successful applicants also receive a work permit.

DACA was designed to help the stereotypical “DREAMers” — immigrants who’d been raised in the US and were either on their way to college or already college graduates. It’s only available for immigrants who’ve been in the US since 2007 and arrived before they were 16; who were 30 or younger as of June 2012; who are in high school or have a high school diploma (or a GED); and who have a mostly clean criminal record.

Those criteria still encompass a population of some 1.5 million people. And in the five years that DACA has existed, more than 780,000 people have taken up the Obama, and now Trump, administration on its offer of protection.

DACA used a pretty standard executive power in an untraditional way

DACA wasn’t a legalization program — technically speaking, immigrants who are “DACAmented” are lawfully present in the US, but don’t have legal status.

It’s an important policy distinction. Having DACA doesn’t give immigrants any path to becoming legal permanent residents or citizens. Still, being lawfully present means that they’re able to get drivers’ licenses even in states that don’t usually allow unauthorized immigrants to drive legally.

But it’s also a reflection of the line between the powers the executive branch has on immigration and the powers reserved for Congress. The executive branch can’t legalize anybody. But it’s fairly common for presidents to allow certain groups of immigrants to apply for temporary relief and grant those requests on a case-by-case basis. (In 2005, for example, the George W. Bush administration allowed foreign students affected by Hurricane Katrina to apply for deferred action; in 2009, the Obama administration granted deferred action to widows and widowers of US citizens and their children.)

That made it tricky for Republicans to attack Obama over DACA when he introduced the program in 2012. So did the fact that polling consistently shows that Americans are broadly supportive of protecting and legalizing young, US-raised unauthorized immigrants — and, of course, that the DACA announcement renewed Latino voter enthusiasm toward Obama after a disappointing first-term immigration record.

Some Republicans groused that Obama should have waited for Congress to make its wishes known on immigration, rather than protecting people Congress hadn't decided to give legal status to. But most of those criticisms were muted.

Mitt Romney, then the Republican nominee for president, avoided giving an opinion on the program for several months — and then declared that while he'd stop new people from applying for protection, he wouldn't strip protection from anyone who'd already received DACA. A lawsuit arguing that DACA was unconstitutional, filed by the state of Mississippi and a group of ICE agents, was swiftly dismissed without fanfare. DACA looked like a fight Republicans didn’t want to pick.

As Congress debated whether and how to pass immigration reform bills in 2013, DACA became a target for conservatives who supported maximal immigration enforcement, including the principle of "random deportations." And then in 2014, an attempt to expand DACA drew Republican attention to the program itself.

Alex Wong/Getty

How DACA became controversial

In November 2014, President Obama announced he was building on DACA with new executive actions to protect groups of immigrants. He proposed loosening DACA’s age restrictions, so that people who’d arrived in the US as older teenagers or who had been too old to qualify for DACA in 2012 could apply for protection. And he announced a similar, but much larger, program called Deferred Action for Parents of Americans — which would give the same protections as DACA to immigrants whose children were US citizens or permanent residents.

The new executive actions would expand the pool of unauthorized immigrants eligible for protection to 4.5 million — nearly half of the unauthorized population of the US. And Republicans were not pleased. A group of Republican state officials, led by the government of Texas, proceeded to sue to stop the expansion of DACA and the new DAPA program from going into effect — and succeeded. (The Supreme Court ultimately deadlocked on the issue in 2016, allowing the Fifth Circuit Court of Appeals’ decision keeping the executive actions on hold to stand.)

Initially, the Republicans suing to stop the new executive actions were clear that they weren’t trying to topple the existing DACA program. But over the course of the suit, it became hard to tell where criticisms of DAPA ended and criticisms of DACA began. Critics alleged that despite the Obama administration’s claims, DACA wasn’t really a “case-by-case” program, because anyone who met the stated criteria was getting approved. (Immigration lawyers have presented evidence that this wasn’t true, but the Obama administration never really denied the claim.) That made it a “categorical” grant of relief, and therefore a violation of executive authority.

Meanwhile, the Republican Party had nominated a presidential candidate whose signature issue during the primary had been a hard line on immigration — and who promised, routinely, to reverse all of Obama’s “unconstitutional executive orders” in his first 100 days in office. To immigration hawks, this was a clear reference to DACA. There was every reason, when Trump was elected, to believe that the program’s demise was imminent.

And then it didn’t happen.

Trump dithered on DACA, but his time is running out

Shortly after the election, Trump started making comments that indicated he might not want to go after the DREAMers after all. “We’re going to work something out that’s going to make people happy and proud,” he told Time magazine, noting that many DREAMers were “good students” with “wonderful jobs.”

The Trump administration drafted an executive order to sunset DACA (allowing people who currently had protection to retain their two-year grants, but not renewing them once those grants expired). But while other immigration executive orders got signed, the one to end DACA languished.

Ron Sachs - Pool/Getty Images

As the Trump administration ramped up “collateral arrests” of immigrants during raids, DREAMers occasionally got caught in the crosshairs. One former DACA recipient whose protection had lapsed was nearly deported in Georgia. In Washington, ICE agents attempted to strip DACA protections from an immigrant because they claimed he’d admitted to being a gang member. In Kentucky, an immigrant woman was shipped to three different detention facilities in as many days, in preparation for deportation, after being arrested by an ICE agent who claimed her DACA protections were no longer valid because Trump was president.

But the program itself still stood. The Department of Homeland Security continued to renew DACA grants and even grant new ones. And on a couple of occasions, DHS made it clear that immigrants with DACA were protected from deportation — then hastened to clarify that they were protected for now.

The dithering frustrated immigration hawks. Finally, in July, a group of Republican state officials — led again by Texas — attempted to force the administration’s hand. In a letter, they told Attorney General Jeff Sessions that if Trump didn’t end DACA by September 5, they’d bring the program before the judge who’d initially stopped Obama’s 2014 executive actions, and who would almost certainly do the same to DACA if given a chance.

The deadline appears to have focused Trump’s mind. While his advisers are split over whether to end DACA, reports indicate that the president is leaning toward pulling the plug. And if that happens, it will almost certainly happen before the September 5 deadline set by the states.

DACA has changed hundreds of thousands of lives

In one respect, the criticism of DACA is undeniably correct: It’s unprecedented. It’s the only program in US history to give protection to so many immigrants for so long. But then again, this is the only time in US history when there have been millions of unauthorized immigrants, with no access to any form of legal status, for more than a generation.

Not everyone who’s theoretically eligible for DACA has applied (unauthorized immigrants from Asia, in particular, have applied in low numbers). But for the now 780,000 immigrants who have received protection under DACA, it’s not an exaggeration to say the program has changed their lives.

Surveys of DACA recipients over the past five years have shown that majorities of them have been able to further their education thanks to the program. Many of them have been able to buy cars or homes. They’ve been able to serve as bridges between their still-unauthorized parents and the outside world. Their mental health has improved compared to immigrants who aren’t eligible for DACA.

Photo by Spencer Platt/Getty Images

And perhaps most importantly, DACA removed the barrier that prevented them from feeling like they truly belonged in their communities — that discouraged them from investing in their futures because they knew that nothing about their lives was truly permanent.

Losing DACA wouldn’t take away the cars that immigrants have bought (though it would make many of them unable to drive them legally) or kick them out of school in most states — though it would presumably force the DACA recipients who are currently working legally to quit or be fired (or continue working under the table, risking legal liability for themselves and their employers). But it would render everything about their lives temporary, once again.

It wouldn’t take away the career training and education they’ve gotten, but it would rip away the security that allowed them to develop and pursue their ambitions to begin with.

DACA recipients wouldn’t automatically be deported. But psychologically, that’s little comfort.

Ending DACA would simply return affected immigrants to the lives they lived before 2012: in the US, but unable to work legally and constantly at risk of deportation.

But how significant that risk would be is unclear. Many DACA recipients have been worried that if the program were ended, the Trump administration would use the information from their DACA applications to track them down — making them sitting ducks. During his confirmation hearings for Homeland Security Secretary, John Kelly all but promised that wouldn’t happen — but John Kelly isn’t running the Department of Homeland Security anymore.

It’s still unlikely that the Trump administration will make a concerted push to round up DACA recipients. They’re already arresting more immigrants than they can efficiently deport. And while they’ve been able, so far, to maintain the narrative that they’re only going after dangerous foreigners, that narrative would crumble if there were widespread arrests of immigrants who were working legally in the US without incident for five years.

Most DACA recipients are better qualified than many other unauthorized immigrants to fight their deportations if ICE tries to deport them. Immigration advocate and DACA recipient Julian Gomez told Vox in November, just after the election, that “most of my anxiety comes from what’s going to happen to everyone else” — people who haven’t been in the US for as long, don’t have the same English skills, can’t make the money that DACA recipients have been able to make by working legally and therefore are less likely to be able to pay lawyers.

“To have had DACA” — Gomez caught himself — “or, to have DACA, I’m already talking in the past tense, is very privileged for me.” It allowed him to get a degree at a four-year college (he transferred from community college after getting deferred action). It allowed him to take a full-time job.

But privilege only goes so far. Gomez and other DACA recipients remember all too well the constant fear that deportation is possible. Gomez learned it growing up, when the home across the street from his family’s got raided in the middle of the night: “We didn’t even know they were undocumented — their house was raided, they were all detained and deported, except for their daughter who happened to not be at the house at the time.

“I think that was the moment where it felt more real, because literally they lived right in front of us and I felt, ‘Okay, that could have been me.’”

DACA removed that fear temporarily. Losing DACA could restore it.

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