June 19, 2020

DACA, college and university students, and the future of U.S. immigration law

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

 

At the end of the term when the Supreme Court hands down its most controversial rulings, the Supreme Court in a 5-4 decision, with the a majority opinion by Chief Justice John Roberts, rejected the Trump administration’s attempt to dismantle the Obama administration’s Deferred Action for Childhood Arrivals (DACA) policy. The much-anticipated decision promises to have monumental impacts on the lives of hundreds of thousands of young beneficiaries of DACA, including many college and university students. The decision also will deeply influence the future political dynamics surrounding immigrant reform. 

Ultimately, the Supreme Court held that the Trump administration’s effort to rescind DACA, without, among other things, considering the interests of the DACA recipients’ reliance on the policy, was arbitrary and capricious in violation of the Administrative Procedure Act.  

Background

DACA did not emerge on a blank slate.  The policy came on only after years of political activism, ferment, and the repeated failure of Congress to pass comprehensive immigration reform.  One of the central bones of contention in the debate over reform has been whether to provide durable legal status to the approximately eleven million undocumented immigrants living in the United States.  

In lieu of the prolonged failure of Congress to enact immigration reform, the Obama administration in 2012 announced and implemented DACA.  Based on a long history of what is known as deferred action, that policy provided temporary relief from removal from the United States to nearly 800,000 undocumented immigrants, including many high school and college students, who came to the United States as children.  A form of prosecutorial discretion, deferred action exercised by the U.S. government in deciding which noncitizens to prioritize for removal, offers recipients limited protection from removal.

Critics vociferously attacked DACA as an unconstitutional “amnesty” that unlawfully intruded on the power of Congress to determine which noncitizens are subject to removal from the United States.  Despite the harsh criticism, various legal challenges to DACA failed to derail its implementation.

Making aggressive immigration enforcement the cornerstone of his 2016 presidential campaign, Donald J. Trump promised to dismantle DACA.  His threat struck fear in the hearts of beneficiaries of the policy, a fear that grew with the administration’s initial immigration enforcement efforts.  After months of discussion and debate, then-Attorney General Jeff Sessions, on behalf of the Trump administration, later announced the end of the policy. Controversy, protests, and legal challenges followed. 

Several lower courts enjoined the attempt by the Trump administration to end DACA.  From the beginning, many observers knew that the Supreme Court ultimately would determine its fate.  The cases slowly made their way to the Court.

DACA’s Impacts

DACA provided some modicum of relief from removal to hundreds of thousands of young undocumented immigrants.  The relief provided economic benefits to the nation and educational gains to DACA recipients.  Latinx persons comprise close to ninety percent of the DACA recipients; citizens of Mexico, El Salvador, Guatemala, and Honduras accounted for the vast majority of them.   (Four Justices who joined the majority found that in Part IV of the Chief''s opinion that there was insufficient evidence that DACA's rescission was motivated by racial animus: although joining most of Chief Justice Roberts' opinion, Justice Sotomayor did not join Part IV.).

Importantly, DACA recipients received work authorization.  As recipients, they were not subject to the bar on employment that applies to undocumented immigrants.  Work authorization made jobs available to DACA recipients.  That, in turn, made university students eligible for federal work study and other employment.  As a result, work authorization meant that DACA recipients were better able to fund their higher education.  In that respect, DACA promoted higher education for young immigrants.

In the wake of DACA’s implementation, University of California (UC) President Janet Napolitano, who as Secretary of the Department of Homeland Security under President Obama implemented the DACA policy, created the UC Immigrant Legal Services Center, which provides legal assistance to immigrant students and their family members on the ten University of California campuses.   As one of the proponents of the Center, I argued that it could provide invaluable assistance to students who, among other things, were applying for DACA and DACA renewals.  Housed at UC Davis School of Law, the Center represents the recognition by the University of California that many students and parents have immigration-related legal needs that warrant university assistance. 

The UC Immigrant Legal Services Center offers students an extensive set of on-campus legal services—from informational workshops to consultations to direct legal representation in immigration court.  In 2018/19, the Center reported that it opened nearly 1500 cases, consisting of 784 DACA renewal applications, 330 consultations, and 362 other forms of legal services.     Initially funded by UC, the Center now receives funds directly from the California legislature, which has declared California to be a sanctuary for immigrants.  

Undocumented students and DACA recipients can be found on each of the ten University of California system.  Many are undergraduates.  Others attend graduate and professional schools, including Law schools.  In some states, such as California, they are eligible to practice law.  

DACA had other significant ripple effects for immigrants in colleges and universities across the United States.  Indeed, DACA’s political impacts as a practical matter may dwarf the important, but limited, relief provided to its beneficiaries.  Specifically, the policy bolstered a potent grassroots movement seeking to vindicate the rights of immigrants.  With DACA’s future uncertain, some congressional leaders again raised the possibility of comprehensive immigration reform and a DREAM Act, a version of which has been proposed for roughly two decades and would afford a path to legalization for young undocumented college and university students.  An organized effort even emerged calling for the full-blown abolition of ICE, which in some ways mirrors the current calls to defund the police.  

DACA recipients are politically active on university campuses.  They prod universities to protect immigrants. University leaders, who often steer clear of controversial political debates, criticized the rescission of DACA, and its adverse impacts on students.   Not that long ago, colleges and universities did not broadcast the enrollment of undocumented students, fearful of a political outcry if their presence became common knowledge.  But politics have changed.  DACA recipients and immigrants generally are provided increasing protections by state and local governments from aggressive U.S. immigration enforcement.  Some advocates today contend that colleges and universities should be “sanctuaries” for immigrant students subject to the Trump administration’s aggressive immigration enforcement tactics.  

The University of California and many others filed lawsuits challenging the rescission of DACA.  165 colleges and universities filed a friend-of-the court brief in the Supreme Court opposing rescission and supporting the legal challenge to DACA’s dismantling.  

In the end, DACA emerged as representing something much more than the mere extension of a limited form of relief to young undocumented immigrants.  It today is nothing less than a lightning rod in the contemporary debate over immigration reform.  DACA recipients and their allies demand nothing less than simple justice for immigrants.

The Supreme Court

From the beginning, Supreme Court observers recognized that the justices likely would be divided about the lawfulness of the Trump administration’s attempt to end DACA.  A 5-4 Supreme Court found that the Trump administration’s decision to rescind DACA was arbitrary and capricious and sent it back for further consideration.  The Court did not decide the lawfulness of DACA and all seemed to agree that, if proper procedures were followed, the President could put an end to DACA.  However, in many respects, the majority’s reasoning mirrored the Court’s reasoning last year in holding that the Trump administration had not provided an adequate reason for including a question on U.S. citizenship on the 2020 Census.   The administration ultimately abandoned the citizenship question.  We will need to wait to see what the administration will do with the rescission of DACA sent back to it for reconsideration.