Written by: Courtney Crampton
Associate Editor, American Journal for Trial Advocacy
Background of DACA
As many have seen in the news over the past few months, the government is currently facing tension in deciding how to approach the Deferred Action for Childhood Arrivals program. Before discussing the most recent news, and in light of the government shutdown, a little background regarding the program may be beneficial. In 2012, the Obama administration introduced the Deferred Action for Childhood Arrivals program (“DACA”). Obama created the program unilaterally through a broad policy change based on existing legal authority. This program protects roughly 8,000 young immigrants from deportation, who meet certain criteria on a renewal basis, often referred to as “dreamers.” The program, while only a temporary solution, is intended to protect immigrants until Congress can pass a law offering permanent protection. While DACA does not lead to permanent legal status, it allows the immigrants to legally work in the United States and obtain important documents, like driver’s licenses. “Under the change, the Department of Homeland Security will no longer initiate the deportation of illegal immigrants who came to the United States before age 16, have lived here for at least five years, and are in school, are high school graduates or are military veterans in good standing.” Additionally, the immigrants must not be over the age of 30 or have a criminal history. The DACA program has been in place since President Obama’s 2012 executive order created the program, and is being enforced today, although the future of the program is looking grim in light of the new Trump administration.
Recent DACA News
Fast forward to 2017, where Donald Trump (“Trump”), presidential candidate at the time, promised to end DACA upon becoming elected President of the United States. After being elected as the 45th president, Trump announced that he was willing to work something out with the “Dreamers.” However, in June of 2017, ten states threatened the Trump administration and stated that if the administration did not pull the plug on the DACA program, they would file a lawsuit in federal court against the program and attempt to end it themselves.  In response to that threat, the Trump administration rescinded the DACA program on September 5, 2017. This rescission created two options: either Congress passes an immigration reform bill by March 5, 2018, or a phase-out plan created by the Trump administration will be implemented. Since the DACA rescission was announced, there has been increasing unrest among the citizens and immigrants. There has also been frustration between the three branches of government.
On January 9, 2018, a federal judge ordered an injunction against the United States Government requiring them to keep DACA on the same terms and conditions as were previously in affect before the rescission, temporarily blocking the Trump administration’s action. U.S. District Judge William Alsup, who presides within the Ninth Circuit located in San Francisco, California, decided the case, which put a stop to the Trump administration’s DACA agenda. Judge Alsup ordered the administration to resume receiving new DACA applications, and stated: “Trump’s move would cause irreparable harm to hundreds of thousands of young undocumented immigrants unless the court stepped in.” The judge even told the Department of Homeland Security to “post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order.” This ruling was decided on the same day that President Trump met with lawmakers to discuss immigration issues, including DACA. During this meeting, Trump encouraged bipartisan lawmakers to come up with “a bill of love,” asking them to create a bill that would continue to protect young immigrants and simultaneously provide funds for a wall along the southern border of the United States, as well as provide increased border security.
In response to this ruling from Judge Alsup, the Department of Justice (“DOJ”) filed a Notice of Appeal on January 16, 2018. The DOJ’s Notice of Appeal seeks review before the United States Court of Appeals for the Ninth Circuit. Further, the DOJ stated that they intend to take the “rare step” of filing a petition for a writ of certiorari, seeking direct review on the merits of the injunction in the Supreme Court of the United States. The DOJ wants the Supreme Court to overturn Judge Alsup’s decision, “allow[ing] the Trump administration to dismantle a program that provides work permits to undocumented immigrants raised in the United States.” In response to Judge Alsup’s ruling, Attorney General Jeff Sessions stated, “‘[i]t defies both law and common sense’ that a ‘single district court in San Francisco’ had halted the administration’s plans.” If the petition for a writ of certiorari is granted then the government would bypass the Ninth Circuit altogether, and head straight for the Supreme Court of the United States for further ruling. The Supreme Court, however, does not have to grant this petition, and could wait until the Ninth Circuit Court of Appeals has acted.
January 19, 2018, just a few days after the DOJ responded to the injunction that reinstated the Obama-era DACA program, the United States government shut down for the first time since 2013. The government shut down because Congress could not pass a spending bill, which included a budget for immigration matters. To end the three-day government shut down, Congress voted for a “stopgap bill,” which funds the government until February 8, 2018. In order for this bill to pass through Congress, something had to give, and that something was a deal for DACA. Democrats were holding out on approving a spending bill in order to ensure funding for immigrants through the DACA program, however, they were not successful in their endeavor. The “stopgap bill” does not include funding for the program. While DACA may not have been included in the short-term spending bill, the program is far from being out of the spot light. As a part of the approval, Democrats were promised future negotiations related to immigration policy.
So where does this leave the “dreamers?” For now it seems that their future is unknown, potentially left in the hands of any of the three branches of government. Congress could pass an act protecting young immigrants before March 5, 2018, the Supreme Court could rule on the injunction reinstating DACA before Congress acts, or the program could be phased out according to the Trump administration. For now, we wait and see how the government will handle the DACA program, hoping that whatever decision is made, it is made with the needs of the American people in mind. As the fate of the DACA program is worked out over these next few months, stay alert to the news and be an educated listener.
 See Richard Gonzales, 5 Questions About DACA Answered, National Public Radio (Sept. 5, 2017), https://www.npr.org/2017/09/05/548754723/5-things-you-should-know-about-daca.
 Deferred Action for Childhood Arrivals (DACA), Department of Homeland Security, https://www.dhs.gov/topic/deferred-action-childhood-arrivals-daca (last published Jan. 29, 2018).
 Julia Preston & John H. Cushman, Obama to Permit Young Migrants to Remain in the U.S., New York Times (June 15, 2012), http://www.nytimes.com/2012/06/16/us/us-to-stop-deporting-some-illegal-immigrants.html.
 Miriam Valverde, Timeline: DACA, the Trump Administration and a Government Shutdown, Politifact.com (Jan. 22, 2018), http://www.politifact.com/truth-o-meter/article/2018/jan/22/timeline-daca-trump-administration-and-government-/.
 Preston, supra note 3.
 Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction, U.S. Citizenship and Immigration Services (Jan. 13, 2018), https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction.
 Valverde, supra note 4.
 Jonathan Blitzer, Republican States Want the Trump White House to Stop Protecting Dreamers, New Yorker (July 15, 2017), https://www.newyorker.com/news/news-desk/republican-states-want-the-trump-white-house-to-stop-protecting-dreamers.
 Valverde, supra note 4.
 Emily Tillett, Jeff Sessions Announces DACA Program to be Rescinded, CBS News (Sept. 5, 2017), https://www.cbsnews.com/news/trump-daca-decision-jeff-sessions-press-briefing-live-updates/.
 Doreen McCallister, Federal Judge Temporarily Blocks Trump’s Decision to End DACA, National Public Radio (January 10, 2018), https://www.npr.org/sections/thetwo-way/2018/01/10/576963434/federal-judge-temporarily-blocks-trumps-decision-to-end-daca.
 Christian Farias, Trump Ending DACA was Never About the Law. A Federal Judge Noticed., NY Mag (Jan. 10, 2018), http://nymag.com/daily/intelligencer/2018/01/judge-reverses-trump-daca-decision.html.
 Dana Bash, Daniella Diaz, & Tal Kopan, Trump Calls for DACA Fix, Still Wants Wall in Bipartisan Immigration Talk, CNN (Jan. 9, 2018), https://www.cnn.com/2018/01/09/politics/
 Justice Department Files Notice to Appeal and Intends to Petition for Immediate Supreme Court Review in DACA Lawsuit, Department of Justice (Jan. 16, 2018), https://www.justice.gov/opa/pr/justice-department-files-notice-appeal-and-intends-petition-immediate-supreme-court-review.
 Maria Sacchetti, Justice Will Ask Supreme Court to Intervene, Allow Trump Administration to End DACA, Washington Post (Jan. 16, 2018), https://www.washingtonpost.com/local/immigration/trump-administration-appeals-judges-order-that-daca-must-remain-for-now/2018/01/16/41a8c960-f6e8-11e7-beb6-c8d48830c54d_story.html?utm_term=.376f38ab68ce.
 US Government Shutdown: How did we get here?, BBC News (Jan. 22, 2018), http://www.bbc.com/news/world-us-canada-39698546.
 Kelsey Snell, Scott Detrow, & Jessica Taylor, Trump Signs Funding Bill, Bringing Shutdown to an End, National Public Radio (Jan. 2, 2018), https://www.npr.org/2018/01/22/579603941/
 Stopgap Bill to End Government Shutdown Passes Congress, New York Times (Jan. 22, 2018), https://www.nytimes.com/2018/01/22/us/politics/government-shutdown.html.
 Snell, supra note 30.
 Stopgap Bill, supra note 32.
 Richard Wolf, Supreme Court Agrees to Speed Up Trump’s DACA Appeal, USA Today (Jan. 23, 2018), https://www.usatoday.com/story/news/politics/2018/01/23/supreme-court-agrees-speed-up-trumps-daca-appeal/1057396001/.