On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport undocumented youth who came to the United States as children. According to a directive from the DHS secretary, these young people could receive a type of temporary permission to remain in the US called “deferred action”. The Obama administration called this program “Deferred Action for Childhood Arrivals,” or DACA. DACA, despite not offering a path to citizenship, it provided work authorization — suspending deportation for two consecutive years, renewable — for approximately 822,000 undocumented young people in the United States, known as Dreamers. The average age of DACA recipients was 21 when the program was established; most are in their 30s now. The largest number were brought to the United States from Mexico, and many others were born in Central or South America and the Caribbean. The fastest growing group of undocumented students is from Asia. We addressed the issue of dreamers here at Latino Observatory, when the measure completed 10 years.

Despite so many beneficiaries known as Dreamers, the program remains in legal limbo: it is not considered legal, but it was also not considered illegal in the United States. The program has been facing several problems regarding permission to exist and operate soon after its creation. Most recently, on September 13, 2023, Judge Andrew S. Hanen of the Federal District Court in Houston alleged that President Barack Obama exceeded his authority in creating DACA by executive action and declared it illegal. The decision is the latest twist in a legal saga that has spanned more than five years.

At first, it is worth taking a historical tour of the legal issues surrounding DACA. The authority of DHS to implement the program was generally questioned because the Immigration and Nationality Act (INA) establishes a intricate set of restrictions on which foreigners can enter or remain in the United States and under what conditions, and permission granted to Dreamers is not included. Therefore, it was stated that the program directly contradicts Congress's decision to restrict green card (permanent immigration visa) eligibility to foreigners who were not “ lawfully admitted to the United States”, in addition to the fact that the travel permit subverts the “3-and-10-year” law whose purpose is to prohibit foreigners who have been illegally present in the United States for 180 days or 365 days, respectively, from re-entering the United States for 3 or 10 years.

Since 2015, there have also been state challenges. In this sense, the State of Texas — along with eight other mostly Republican states — questioned the legality of DACA following a 2015 decision by the US Court of Appeals for the Fifth Circuit (Texas I) that considered a similar initiative illegal: grant visas to illegally present parents of U.S. citizen or lawful permanent resident (LPR) children.

Soon, in 2017, the Trump administration published a memo rescinding DACA and demanded that the Department of Homeland Security end the program. The Supreme Court reinstated it after finding in2020 that the Trump administration had not adequately justified its elimination. But the high court did not rule on the legality of President Obama's creation of the program. The Biden administration initiated a rulemaking procedure in 2021 to explicitly try to strengthen the legal basis of DACA, but the rule issued by the administration did not convince the judge — on the other hand, he also did not encourage the adoption of any immigration, deportation or criminal action against DACA beneficiaries.

Now, although the ruling is a blow to Dreamers, the judge allowed current enrollees to continue to renew every two years but prohibited new enrollments, making tens of thousands of younger undocumented immigrants ineligible for the benefit. It is important to mention that DACAallowed beneficiaries to pursue higher education, become homeowners, and earn higher wages. However, now there is a fear of having their renovations made difficult and losing their living conditions. In 2018, American Progress did an interview in which 64% of Dreamers reported that they think about having a family member deported at least once a day and 76% of those with children reported that they fear “being separated from [their] children because of deportation” or “not being able to see [their] children grow up because of deportation” at least once once a day. In this logic, in 2023, with the illegality of the program confirmed, concerns should intensify.

The debate surrounding the program raises significant questions about the responsibility of the United States Congress regarding immigration legislation and the possible role of the Supreme Court in resolving this impasse.

One of the main areas of discussion surrounding the project is Congress's responsibility to create clearer and more permanent immigration laws. DACA was designed as a temporary measure to protect young immigrants who arrived in the United States as children. However, its temporary nature has been a source of uncertainty for program beneficiaries.

On the federal stage, Congress holds the power to enact lasting protections that provide a clear path to citizenship for the undocumented community, who day in and day out continue to actively contribute to workplaces, schools, neighborhoods, etc. The future of hundreds of thousands of young undocumented immigrants rests in the hands of the Supreme Court, but to date, Congress has failed to reach a consensus on immigration legislation that adequately addresses the plight of Dreamers.

The United States Supreme Court, in turn, also assumes centrality in the discussion. The Attorney General of the United States, Noel Francisco, in defense of the federal government, sought to influence the judges to not get involved in the issue. At that time, still during Donald Trump's administration, he argued that the administration's decision to end DACA is not subject to judicial review, arguing that it simply ended a previous administration's choice not to enforce immigration policy.

Francisco emphasized that this choice falls completely within the agency's discretion and therefore cannot be challenged by the courts. However, DACA supporters are against this position and believe that the Supreme Court should review the decision to end the program. The second question before the justices was whether the Trump administration's decision terminating the program violated the law. At this point, the case is in a somewhat unusual situation because everyone agrees that the administration could close it if they wanted to. As a result, the focus is primarily on the process by which the Trump administration arrived at its decision, rather than the substance of the decision itself.

The arguments presented before the Supreme Court focus on the legality of the project and the process by which the decision to terminate it was made. The justices expressed concerns about whether the administration adequately considered the trust interests of DACA recipients and provided a sufficient explanation for ending the program.

“[...] We don’t like DACA and we are taking responsibility for it rather than trying to blame it on the law.” Francisco responded by telling the judges that the government owns the decision to end the program.

The Supreme Court also currently faces the challenge of determining the extent to which decisions by federal agencies, such as program repeals, should be reviewed by the courts. This raises the broader question of how to balance agency authority and the scope of judicial review, and it raises the debate over the limits of executive power—the president's authority to implement programs that bar so many general legal issues like DACA.

It is also worth mentioning that DACA has been a point of political contention in the US as Republicans overwhelmingly speak out against it and Democrats in favor of it. Traditionally, Democrats generally support more inclusive policies for immigrants, while Republicans tend to emphasize border security and strict enforcement of immigration laws. It is necessary to consider the fact that the majority of the population of Latino/Hispanic origin tends to vote with the Democrats, causing the Republicans to react to the population increase of this segment. Added to this is an unprecedented level of partisan polarization, not only regarding immigration, but also regarding renewable energy, taxation, individual rights, customs, etc. Considering that the most significant decisions of the United States Congress depend on a qualified majority of at least 60% of the votes, it is almost impossible to find common ground to pass comprehensive reforms.

In theory, in a balanced and democratic political system, members of the Democratic and Republican parties should work together to find common solutions regarding immigration policies in the United States, such as the need for a policy that is fair, effective and humanitarian and that meets the demands for workers within the country. Unfortunately, this is not what is expected from the political system in the short term. Meanwhile, the future of Dreamers remains uncertain and in legal limbo.