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July 27, 2021

A Dream Still Deferred: Awaiting the Fate of DACA Deep in the Heart of Texas

On Friday, July 16 a judge ordered a permanent injunction prohibiting USCIS from approving any initial pending or new DACA applications.

On Friday, July 16 a judge ordered a permanent injunction prohibiting USCIS from approving any initial pending or new DACA applications.

What struck me most when I first started representing clients applying for the Deferred Action for Childhood Arrivals (DACA) program was the deep vulnerability of being forced to share with me the many details of their lives. School reports, medical records, student ID cards, and more—pieces of lives lived mostly in the United States, now put on display for an immigration officer far away to evaluate their worth. These are the records of people forced to fly under the radar since their arrival, while also striving to excel in school or in our military, of people trying to “prove” they should be given a chance to remain in the United States, trying not to stand out, while still expected to be outstanding.

The DACA program was created in 2012 by President Obama—after the 2010 Development, Relief, and Education for Alien Minors (DREAM) Act failed to pass in Congress—and was meant to provide an opportunity for people brought to the United States as minor children, through no decision of their own, to be temporarily protected from deportation and to be able to apply for a work permit. By June 2020, more than 800,000 youth had been granted DACA, but the program’s future has been fraught with uncertainty during repeated challenges. And now, the outlook for new applicants has just become even more challenging.

A few days ago, on Friday, July 16, Judge Andrew Hanen of the Southern District of Texas ruled that President Obama had exceeded his authority when he created DACA, and ordered a permanent injunction prohibiting U.S. Citizenship and Immigration Services (USCIS) from approving any initial pending or new DACA applications, while allowing current beneficiaries to maintain and renew their status. This outcome was not unexpected, as in 2018 Judge Hanen had already stated his belief that DACA “contradicts statutory law and violates the [Administrative Procedures Act],” and immigration advocates and hundreds of thousands of families had feared July 16th’s ruling. Unfortunately, despite President Biden’s announcement that the Department of Justice intends to appeal, the outcome remains uncertain.

In his haunting poem, “A Dream Deferred,” African-American poet Langston Hughes painted a picture of a struggle for freedom that seemed to become more hopeless with each passing day. That hopelessness would also be understandable among twenty-first century dreamers today, who face the possible end of the DACA program, their chance at legal status and the opportunity to work and live in the country where they were raised—all after years of traumatic uncertainty.

Despite the Trump Administration’s attempts to terminate DACA, the tireless work of fearless advocates in the courts resulted in a 5-4 Supreme Court decision restoring the program in June 2020. Six months later, the Eastern District of New York ruled in December 2020 that USCIS must accept new applications. More than 50,000 people applied for DACA in just the first three months after that December 2020 ruling. Working against the clock as we awaited Judge Hanen’s decision, we at the American Bar Association (ABA) South Texas Pro Bono Asylum Representation Project (ProBAR) and other organizations have assisted families in applying for DACA status, even while the processing delays resulted in backlogs in the tens of thousands. In my work with clients living with this uncertainty, I have seen the human cost that this uncertainty is inflicting on them, as well as the steadfast hope they still have for a more certain future, one in which they can give back to this country through their hard work. In the faith of these families, I see the hope of my own parents and grandparents, who fled an oppressive system to find freedom in this country, and I see great examples of people who should someday be American citizens.

Since I started working at ABA ProBAR, I have seen the transition from the Trump to the Biden Administration result in crucial new opportunities for my clients, including a better chance to secure vital protection in the United States and to not have to wait in dangerous encampments on the other side of the border. With the Biden Administration’s decision to end Trump’s cruel Migrant Protection Protocols (MPP), for example, fleeing migrants can now be paroled into the country after being processed by Customs and Border Protection (CBP) and live with a sponsor family while they await their asylum court date. Yet the legal fate of DREAMers will not depend only on the Biden Administration’s formal expressions of support for DACA. It will likely require Congressional action.

Americans have much to learn from DACA recipients about what it means to be American and to fight hard for the opportunity to obtain legal status. I will never forget my disbelief when the devoted mother of one of my clients asked me if her child just barely missing an A on a minor school assignment would jeopardize their chances of obtaining DACA. Whereas natural-born citizens are simply born in the United States, DACA applicants who were brought here as children had to brave the unknown, learn English, and not just stay out of trouble but excel in all their endeavors—and all that just for the opportunity to secure a work permit. As the son and grandson of immigrants, I inherited a vision of this country as kind and fair. Denying the opportunity to work to young immigrants who have invested so much in this country is both unkind and unfair.

That said, when I share with my DACA clients my hope that the new Administration will be more receptive to their applications, I am forced to reckon with the very real possibility that this court decision may indeed invalidate their chance to be here, if appeals to higher Courts are unsuccessful. In response to my long explanation to my clients about Judge Hanen’s ruling, one mother simply said “Tell me the truth, are my children in danger?” I was heartbroken by the question and by the fact that I had to tell them that “the waiting continues.”

 This interminable waiting is incompatible with our understanding of our national identity as a nation of immigrants. Now it appears it is up to the Supreme Court or Congress to follow the lead of the Executive branch and not forget these young Dreamers, because they are emblematic of our hopeful future. (To paraphrase a different poet who himself struggled with the U.S. immigration system and imagined something different, we may say they are dreamers, but they are not the only ones.)

To keep their dream alive, we may do well to turn to another Langston Hughes poem from 1935, “Let America Be America,” which forces us to grapple with our past and with our present. We must confront the gap between our image of ourselves as a land of immigrants seeking opportunity, and the reality so many families encounter at the border. Can “Let America Be America” still mean “Let America be the dream the dreamers dreamed?”



About the Author:

Pedro Spivakovsky-Gonzalez is a Staff Attorney with ABA ProBAR. Pedro assists adult asylum-seekers detained in ICE custody and takes on a range of immigration cases, including removal defense cases and DACA applications. Prior to joining ABA ProBAR, he was a Staff Attorney and Skadden Fellow doing civil legal aid for low-income veterans in Massachusetts.