WASHINGTON – Karen Judith Briseno Ortiz submitted 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 has been placed in limbo due to an order by a Texas federal judge, who ruled that the Obama-era program was illegal.
“That opportunity has been taken away from me,” she said of Texas District Judge Andrew Hanen’s decision, which barred the government from accepting new applicants into the program but allowed it to remain for current participants while it undergoes litigation.
Several immigration attorneys who spoke to State Newsroom said they expect a decision on the legality of DACA, when it eventually goes to the U.S. Supreme Court, won’t be issued until 2024. It appears unlikely that Congress will act, although immigration advocates have suggestions on policy initiatives the Biden administration could study for DACA recipients.
In the meantime, they have to 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, can’t get work permits and will likely have to leave her home state to attend medical school, since there are 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 illegal, leaving recipients in limbo and unsure whether they will be protected from deportation.
Briseno Ortiz is the only one of her three siblings not in the program, although she is 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 still pending because of the order.
DACA legal challenges
The Trump administration tried to repeal the program in 2017. That’s 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 illegal, US Citizenship and Immigration Services should have started accepting DACA applications for the first time, but the Trump administration has not.
It was first December 2020 that USCIS has complied and opened applications for first-time applicants, and that’s when Briseno Ortiz and her sister sent in their applications. Her twins’ paperwork was sent on December 22 and hers on December 23, 2020.
They sent their applications one day apart to avoid any confusion with immigration officials or to hold up their applications because they share the same birthday and first and last name.
Briseno Ortiz’s twins were accepted into DACA in June 2021, just before Hanen’s decision, which barred future applications but allowed for renewals. It stems from a lawsuit filed by Republican-led states arguing that the program is burdensome to states and that the government violated its power to create the program.
Briseno Ortiz said she felt 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 the Obama administration lacked 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 about the program issued by the Biden administration in August 2022, which would take effect on October 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 legal. A schedule for that case has not yet been set.
“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 that if DACA is struck down, renewals would 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 gave DACA more legal standing by writing a rule about the program, rather than to have it as a memo, which the Obama administration made.
“That doesn’t mean it won’t be outlawed, but it’s on a much better legal footing,” he said, noting that when Hanen first looked at the Obama-era program, he decided has that the administration has exceeded its power to create. the program through a memo, rather than making proper rules.
Chishti said that in many ways the Biden administration has already responded to Hanen’s arguments by going through the rulemaking process to create DACA.
He added that briefs in the case could be filed through April, meaning a date for oral arguments would not be set until after that.
“I don’t think we’re looking at a decision in this case until 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 imminently wrong that could potentially happen to the existing DACA recipients,” he said.
DACA ‘is outdated’
Juliana Macedo do Nascimento, United We Dream’s deputy director of federal advocacy, 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 its history and his legacy. with the program.”
United We Dream is a non-profit 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 protection.
Macedo do Nascimento pointed out that undocumented youth who would be eligible for the program cannot qualify because they were not born by 2007. To qualify for DACA, undocumented youth must have lived continuously in the US as of 2007.
“We know that immigrant youth who turn 15, 16, who would otherwise be eligible, 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.
Congress came to a standstill
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 as engaging with immigration advocacy groups.
Even when Democrats controlled the US House last year, Democrats in the Senate lacked the votes to overcome the 60-vote threshold requirement.
Last year, Senate Democratic leaders set a December deadline to pass any bipartisan legislation to create a path to citizenship for DACA recipients.
With the House majority won by Republicans in the 2022 midterm elections, Democrats had just a few months to pass any legislation protecting DACA before losing the House.
There has been some talk of a bipartisan deal with Sens. Kyrsten Sinema, a Democrat from Arizona who has now become an independent, and Thom Tillis, Republican from North Carolina, but nothing has solidified.
Even with Congress deadlocked, 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 already in the U.S. residents, but whose home country is deemed unsafe for return, and allow those recipients to remain in the U.S. temporarily, or Delayed forced departure.
DED 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 large 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 it 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 financial sponsors in the US 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 exploring 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 extension of Title 42what is a controversial policy that immediately turns away migrants at the US-Mexico border during a health crisis, such as the coronavirus pandemic.
However, the parole programs implemented by the Biden administration are already facing legal challenges from Republican-led states.
The White House did not respond to State Newsroom’s requests for comment on its plans regarding the possible end of DACA.