After Texas Court Ruling, What’s the Future for Young Immigrants and DACA Recipients?

Hundreds of thousands of immigrants in the U.S. are in limbo, after U.S. District Judge Andrew Hanen ruled last Friday against the Deferred Action for Childhood Arrivals (DACA) program launched in 2012 by former President Barack Obama. The program provides temporary protection from deportation, and work authorization, to undocumented immigrants who came to the U.S. as children. Hanen, based in Texas, argued that DACA was created illegally.

The decision does not end legal protections for the roughly 616,000 current DACA participants. However, the legal decision does suspend approvals of new applications and leaves the door open for DACA to be terminated in the future.

President Biden has pledged to appeal the ruling and called on Congress to protect so-called Dreamers and create a path to citizenship for millions of people who lack legal status in the United States.

On July 19, KQED Forum host Mina Kim spoke with the following guests to get an overview of the legal decision and what happens next, and also to hear from immigrants who could be affected:

• Tom K. Wong, associate professor of political science and founding director of the U.S. Immigration Policy Center at UC San Diego.
• Dulce García, immigration attorney, executive director of Border Angels and a DACA recipient.
• Denea Joseph, immigrants rights advocate and DACA recipient.
• Ju Hong, DACA recipient and member of Immigrants Rising, an organization that helps undocumented young people achieve educational and career goals.

The following interview has been edited for length and clarity.

Understanding the Ruling

What was the basis Judge Andrew Hanen used in ruling that the creation of DACA was unlawful?

Tom K. Wong: Judge Hanen ruled that DACA is unlawful because the creation of DACA violated the Administrative Procedure Act (APA), which requires public comment before changing policy.

The ruling by Hanen based on the APA is a bit ironic because the last several years of the battle over DACA in the courts saw DACA being preserved mostly because of the APA as well.  The Trump administration tried to end (DACA). DACA advocates [then] made a legal argument that the way that the Trump administration tried to end DACA violated the APA. Therefore, district courts all the way up to the Supreme Court said that DACA should stay. And now we have Judge Hanen relying on the same Administrative Procedure Act to essentially rule that DACA is illegal.

What is the immediate impact of this decision?

Tom K. Wong: The immediate impact is already being felt. Those who are first-time applicants, they should have received text notification from USCIS saying that biometrics appointments are now canceled. So part of applying for DACA not only includes a paper application, but once that's received by U.S. Citizenship and Immigration Services (USCIS), then individuals go in for biometrics, for example, to provide their fingerprints. So those appointments are already being canceled.

For the approximately 600,000 active DACA recipients, this means more uncertainty and more limbo. We essentially had four years of uncertainty over DACA under the Trump administration. And this particular ruling — although it does not say that current active DACA recipients will lose their status —  adds to the sort of uncertainty that the recipients are living with on a day to day [basis] and makes more vivid the importance of a permanent legislative solution for not just DACA recipients, but for undocumented immigrants more generally.

The Experiences of DACA Recipients

What was your reaction to the ruling?

Ju Hong: When I heard the news, I was devastated and frustrated and honestly, I was sick and tired. I was tired of hearing this news all over again. I just had to let out the frustration with other DACA recipients who are applying for it, and they all felt frustrated and angry, and this gave another affirmation that DACA is temporary and we cannot live in this limbo every two years.

Honestly, I'm really tired and I cannot live like this anymore with this fear and this anxiety and the stress, I think enough is enough. I've had DACA since 2012. I've been undocumented since 2001. And I'm 31 years old and I want to have peace of mind and live a normal life.

Dulce García: Sad, tired, frustrated and exhausted. All of these attacks in our communities have taken a toll on us physically and emotionally. The last few years have been very difficult. We were physically at the steps of the Supreme Court and we celebrated a victory last year when we received the opinion of the Supreme Court.

We thought with the change of administration, perhaps there was new hope renewed. This takes us back. It's unbelievable that we're in this place yet again where our livelihoods are compromised, where the uncertainty is still there and our lives are still very much in limbo.

DACA allowed so many of us to apply for opportunities we never even imagined. As an attorney, I'm able to step into ... immigration courts and represent clients.

What are the impacts that are often less known on DACA recipients?

Dulce García: The emotional toll that we have every time that we have to send our application, and hope that it gets processed in time before we lose our jobs, is a big one. When I applied in 2014, I was hesitant. I didn't trust the government. I wasn't sure whether it would be approved and we would be turning over all of our information, that on its own is a little bit scary to apply for the first time.

I understand why some folks hesitated to apply. Once you apply, we know that the program can be destroyed at any moment, as it was during the Trump administration.

When I applied in 2014, they told me it would be political suicide for anyone to attack the program. Yet here we are. Where not only the prior administration attacked it and we had to step up and sue the federal government ourselves, but now the state of Texas is doing its own lawsuit and we don't know what's going to happen with the program yet.

Possible Paths Forward

Why was DACA was established the way it was in 2012?

Tom K. Wong: If folks think back to 2010, the DREAM Act was in Congress. It narrowly failed, not because of Republicans who typically are opposed to legal status for undocumented immigrants, but because the Democratic caucus couldn't hold the line. And so the failure of the DREAM Act in 2010, followed by a looming reelection of President Obama in early 2012, combined with potential Republican DREAM Act legislation being introduced by then-Republican presidential hopeful Marco Rubio. That was the political backdrop for the announcement of DACA.

[Budget reconciliation] seems to be the most viable path forward right now. We know that there are 50 Democrats in the Senate and 50 Republicans. With Vice President (Kamala) Harris being the tiebreaker. The filibuster makes it difficult to imagine getting 60 votes, which is needed to invoke cloture, which ends a filibuster. So it's hard to imagine 60 votes for something like legal status, even for undocumented young people.

If we're going to see any action from Congress on immigration, [we should look for] something before the end of summer, before August recess, or if there is some kind of continuing resolution which kind of punts the ball a few months down the road, then the next opportunity would be in fall.

To get something into a budget reconciliation bill, you're required to show that DACA has more than incidental budgetary impact. What's the status of that? Is there a strong argument there?

Tom K. Wong: My colleagues and I at the Center for American Progress, the National Immigration Law Center and United We Dream, have been surveying recipients like Dulce and Ju — sometimes with the help of  Dulce and Ju — since the inception of DACA. What we've been able to show are DACA's fiscal and economic impacts and they are overwhelmingly positive.

We have asked DACA recipients to be exceptional based on the requirements for receiving DACA in the first place. And our survey data show that DACA recipients are, in fact, exceptional. Part of what we are seeing is that DACA recipients are among the most educated subgroup of the population in the United States, and part of DACA requires at least a high school diploma, GED or equivalent.

What we see in the data, DACA recipients are using their education to make tremendous contributions to the economy. We see that 63% have moved to a job with a better pay post-DACA, that 53% have moved to jobs with better working conditions.

Similar percentages report moving to jobs that better fit their education and training and their long-term career goals. We have seen 110% in our latest 2020 survey increase in hourly wages because of DACA. With those hourly wages, we're seeing increased tax contributions both at federal, state and local levels.

The Experiences of Black Dreamers

Some advocates point out that Dreamers are not often seen as Black or Asian. Why is it important for Black Dreamers to be more visible?

Denea Joseph:  Black undocumented people in the United States of America, out of the 11.5 million undocumented people that exist in this country, only 619,000 that we know of are actually undocumented and Black. And the reason that that number matters is it might not completely be accurate.

In order for you to be counted, you must first have a seat at the table. And for many Black immigrants, [they] tend not to want to share their stories because of a fear of what might happen if we do share our stories. It took me more than a decade in order to share my own.

It's important that we highlight the intersectionality of being both Black and undocumented because of the way in which Black immigrants are disproportionately impacted by this immigration system.

By a RAICES count, Black immigrants tend to have a 50% higher bond when placed in detention centers, not to mention more susceptible to deportation as a result of their status. We saw a letter come out of the T. Don Hutto (Detention Center) around last year by Cameroonian women in which they spoke about the horrid conditions they were facing at the hands of people who were detaining them. So they're more susceptible to violence as a result, not only of status, but as a result of our race and our ethnicities.

Supporting Dreamers

How can someone help individuals directly affected by the ruling?

Denea Joseph: I would say check out organizations like the Black Alliance for Just Immigration, Haitian Bridge Alliance, Inc, Immigrants Rising and the incredible work that they're doing in order to support undocumented entrepreneurs who might not now be given the opportunity to work by way of their employment authorization cards.

In the decision to support organizations, I think it's crucial if you see a way for you to support monetarily by way of giving to the mutual aid funds that you might have within your community.

Listen to KQED Forum to hear the full episode.