The fate of over 800,000 people who were brought to the United States as children—known as Dreamers—is on uncertain ground as the U.S. Supreme Court reviews President Donald Trump’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. The Constitution and federal immigration laws afford the executive branch significant authority to set immigration enforcement priorities. This case brings to the forefront where the limits of this authority are located. But DACA brings forward more than just the legal limits of the executive branch. DACA represents the unity and activism of the youth-led movement that led to one of the biggest wins for immigrant rights in recent history.
The DREAM Act Continues to Be Only a Dream
On August 1, 2001, Senators Dick Durbin (D-IL) and Orrin Hatch (R-UT) introduced to the U.S. Senate the bipartisan legislative proposal called the Development, Relief, and Education for Alien Minors Act—most commonly known as the DREAM Act. The DREAM Act would open a pathway for certain undocumented immigrants who were brought to the United States as children to apply for U.S. legal permanent residency and eventually be eligible for U.S. citizenship. American Dream Act, H.R.1751, 111th Congress (2009–10).
To be eligible for the DREAM Act, the applicant must:
- Have proof of having arrived in the United States before age 16;
- Have proof of residence in the United States for at least four consecutive years since their date of arrival;
- If a male born in 1960 or later, have registered with the Selective Service;
- Be between the ages of 12 and 35 at the time of bill enactment;
- Have graduated from an American high school, obtained a GED, or been admitted to an institution of higher education in the United States;
- Be of good moral character.
The DREAM Act has been just that—a dream. Congressional gridlock has stopped the DREAM Act from becoming law every time it has been introduced in Congress. However, despite its lack of progress in Congress, one thing that the DREAM Act did achieve was to provide a name to the population of immigrants who were brought to the United States as children and grew up with American hearts: Dreamers.
The Evolution of the Youth-Led Immigrant Rights Movement
In the years after Congress first became deadlocked on the Dream Act, the immigrant rights movement grew in momentum and size. In 2009 and 2010, a number of sit-ins, hunger strikes, marches, and social media campaigns were conducted by many activist organizations. Arely M. Zimmerman, A Dream Detained: Undocumented Latino Youth and the DREAM Movement, 44 NACLA Report on the Americas 14–17 (2011). On June 23, 2009, United We Dream—now the largest immigrant youth-led community in the United States—and other organizations organized 500 youths to participate in a National DREAM Act graduation in Washington, D.C., combined with 15 more ceremonies nationwide. Supra, at 14–17.
In late 2010, immigrant rights groups generated over 840,000 calls, in-person support, and emails in favor of the DREAM Act, as well as 81,000 petitions delivered to targeted Senate offices. Hinda Seif, “Unapologetic and Unafraid”: Immigrant Youth Come out from the Shadows, 2011 New Directions for Child and Adolescent Development 59–75 (2011). Dreamers also participated in protests for protection for immigrant rights despite threats of arrest, imprisonment, and deportation. In engaging in these very public activities, the Dreamers invoked a sentiment of “coming out” as undocumented, perhaps inspired by the experiences of the LGBTQ community. Natasha Rivera-Silber, Coming Out Undocumented in the Age of Perry. New York University Review of Law & Social Change, 37:1, 71–78 (2013).
President Obama’s Announcement of DACA
The year 2012 was pivotal for Dreamers. By 2012, President Barack Obama’s administration was well on its way to deporting more non-citizens than any other administration in U.S. history. This year marked the end of President Obama’s first term in which his administration had deported over 1.5 million people, outpacing deportations carried out by his predecessor, President George W. Bush, by nearly double during his first presidential term. Department of Homeland Security, Yearbook of Immigration Statistics. The Senate had again failed to pass the Dream Act just the year before. Karoun Demirjian, Harry Reid Reintroduces the DREAM Act, The Las Vegas Sun, May 21, 2011. This added to the already growing frustration of Congress’s inaction toward legislation that provided a pathway to citizenship for Dreamers. This restructured priorities for much of the immigrant rights movement. Aside from a pathway to citizenship, Dreamers wanted to stop the most damaging issue for families without immigration status: deportations.
- United We Dream, along with other immigrant rights groups, outlined a strategy that was direct and simple: to shift and focus all of their resources on securing executive action to stop the deportations from President Obama. Adrian Carrasquillo, How the Immigrant Rights Movement Got Obama to Save Millions from Deportations, Buzzfeed, Nov. 22, 2014. Sit-ins, hunger strikes, and nonviolent civil disobedience continued with great vigor. Sasha Costanza-Chock, “Out of the Closets, Out of the Shadows, and Into the Streets,” Out of the Shadows, Into the Streets! 129–154 (2014). Then, with the help of the National Immigration Law Center, they publicized the president’s legal ability to reduce deportations through executive action.
On June 15, 2012, President Obama stepped out into the Rose Garden and announced his administration’s decision to stop deportations of Dreamers. Along with cessation of deportations, the Dreamers would be eligible to obtain work permits (not to be confused with work visas). Effectuating this new policy, then secretary of the Department of Homeland Security, Janet Napolitano, used her executive authority of prosecutorial discretion and issued a memorandum to Immigration and Customs Enforcement, Customs and Border Protection, and U.S. Citizenship and Immigration Services (USCIS) that prioritized the deportation of individuals with serious criminal convictions and explicitly deprioritizing Dreamers. This policy became known as Deferred Action for Childhood Arrivals, or DACA.
Individuals may request the benefits of the DACA program if they meet the following requirements:
- Are under the age of 31 as of June 15, 2012 (at least 15 years or older at the time of application);
- Came to the United States before the age of 16;
- Have continuously lived in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making their requests for consideration of deferred action with USCIS;
- Had no lawful United States status on June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, (2012).
DACA was an unqualified success. The DACA program allowed over 825,000 young adults to come out from the shadows, participate in the economy, and be full members of their communities. At least 72 percent of the top 25 Fortune 500 companies employ DACA recipients— including IBM, Walmart, Apple, General Motors, Amazon, JPMorgan Chase, Home Depot, and Wells Fargo, among others—as do many other companies, including Uber and Lyft. Many Dreamers are entrepreneurs who have created companies themselves. Six percent of Dreamers (and nearly 9 percent of Dreamers age 25 years or older) started their own businesses after receiving DACA deportation deferrals. Tom K. Wong, et al., DACA Recipients’ Livelihoods, Families, and Sense of Security Are at Stake This November, Ctr. for Am. Progress, (Sept. 19, 2019). Those businesses create jobs for other U.S. residents: Each DACA business owner with full-time employees employs on average 4.5 other workers. Id. That is nearly 86,000 additional jobs that otherwise would not exist. Furthermore, polling suggests that almost 9 out of 10 Americans support the DACA program. Max Greenwood, Poll: Nearly 9 in 10 Want DACA Recipients to Stay in US, The Hill, (Jan. 18, 2018).
President Trump’s Rescission of DACA
On the campaign trail, Donald Trump vowed to undo DACA. Once in office, however, he bowed to the overwhelming popularity of DACA and said that he would treat its recipients “with heart.” Others in President Trump’s administration remain opposed to DACA and committed to end the program.
On August 24, 2017, several Trump administration officials gathered in the Roosevelt Room at the White House for a meeting about the DACA program. Jonathan Blitzer, The Trump Administration’s Plot to End DACA Faces a Supreme Court Test, The New Yorker (Nov. 10, 2019). Present were Attorney General Jeff Sessions, White House Advisor Stephen Miller, Gene Hamilton, an official at the Department of Homeland Security, the president’s Chief of Staff John Kelly, Kelly’s own Chief of Staff Kirstjen Nielsen, and the acting secretary of the Department of Homeland Security, Elaine Duke. Miller scheduled the meeting for a day when Jared Kushner, a moderate voice on immigration, was out of town. Id.
Duke had arrived at the meeting thinking that it would be a discussion about general immigration policy. Julie Hirschfeld Davis, Border Wars: Inside Trump’s Assault on Immigration (2020). Miller had not told her that the actual purpose of the meeting was to set in motion DACA’S cancelation. Id. The government’s own record of the meeting undercuts the administration’s subsequent claims that Duke received a letter from Sessions and then independently decided to end DACA after a thorough consideration of the policy. Id. Rather, the decision to end DACA was made on that day by Sessions based on the conclusion that the program was unlawful. Duke’s memorandum that terminates the program provides no actual policy reasons for ending DACA and only reiterates Sessions’s claim that DACA was unlawful. Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA), (2017).