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September 12, 2017

What Do Dreamers Do Now?

By Rose Cuison Villazor

[Cross-posted from the New York Times]

DAVIS, CALIF. - On Tuesday Attorney General Jeff Sessions announced the White House's plan to rescind protections for young immigrants who arrived in the United States illegally as children, but with a six-month grace period to let Congress respond. The program, Deferred Action for Childhood Arrivals, grants those who qualify for the program a reprieve from deportation, which they must renew every two years.

The White House claims that DACA, which President Barack Obama announced in 2012 and which has broad bipartisan support, is illegal, but deferred action is a widely accepted legal principle. Over the last five years, DACA has become a core part of America's immigration landscape: DACA has been granted to more than 800,000 immigrants, allowing them to attend school, work and contribute to their communities. Its repeal would upend the lives not only of these "Dreamers," as participants are called, but also of their families, co-workers and employers.

The announcement leaves the Dreamers with countless questions. While authorities have said they won't prioritize DACA participants after the program ends, how easily could that change? Will Congress come through with a replacement? The announcement says that information provided in DACA applications would not be proactively shared, with some exceptions - but does that leave open the possibility that information may be shared upon request from enforcement agencies?

At least two things are clear, however. First, the government must continue to treat current DACA recipients as people with deferred action, who should not be removed unless they violate the terms of DACA. Officials say that some recipients will be allowed to keep their status and even renew; the government should make this clear and apply it to all current DACA participants. The Department of Homeland Security has its own standard operating procedures that specify the process of how one's particular DACA approval may be rescinded. The government must continue to comply with its own guidelines and not revoke a person's deferral arbitrarily.

Second, and most important, is what the government does with the information Dreamers gave it as part of their application - information that amounts to an admission of their having entered the country illegally, albeit without their knowledge, since they were children at the time. United States Citizenship and Immigration Services, which administers DACA, should delete all their information.Every weekday, get thought-provoking commentary from Op-Ed columnists, the Times editorial board and contributing writers from around the world.

Applicants gave that information with the assurance that it would not be shared with Immigration and Customs Enforcement or Customs and Border Enforcement, the agencies that otherwise would be charged with deporting them. As the Citizenship and Immigration Services' own guidance states, "information provided in this request is protected from disclosure to ICE or C.B.P.," unless the applicant commits a crime or poses a national security threat.

Dreamers divulged information to the government, expecting that their information would not be shared. The information includes not only potentially incriminating information like date of initial entry and length of stay in the United States, but also details like their names, addresses, school information and Social Security numbers - precisely what the government needs to locate and detain them quickly.

As Zachary Price of the University of California Hastings College of the Law has argued, using such information would constitute entrapment. Courts have thrown out convictions of defendants who were prosecuted based on actions, statements or information they provided when they were assured that their conduct would not lead to adverse action. Dreamers facing deportation could apply the same logic here. Absent that information, it would be much harder, though not impossible, to deport them. Allowing the government to use their information would be, to quote the Supreme Court in a leading entrapment case, "shocking to the universal sense of justice."

This is information that Dreamers would not have given the government without such nondisclosure assurances. They thought they could trust the government. In fact, in some cases lawyers advised clients who were considering applying not to, precisely, they said, because the government couldn't be trusted.

Allowing the government to use the information obtained through DACA to find these individuals and remove them would not only be heartless, but would set a dangerous precedent. Even if Congress, sometime in the future, were to enact a legislative equivalent of DACA, what are the chances that undocumented immigrants would once again put their faith in a government database?

In an interview President Trump gave days after his inauguration, he said that he was looking at the DACA program with a "big heart." Seven months later, many are heartbroken about the loss of a program that has brought thousands of Americans a sense of belonging despite their lack of "papers." But as in so many cases under this still-young administration, the expansive cruelty of the executive branch may yet be tempered by the powers and wisdom of America's legal system.