Ideas. Action. Results.

Theresa Cardinal Brown: Why a DACA Fix Next Year Would Come Too Late

Roll Call

Monday, December 11, 2017

Read the opinion piece below as originally published in Roll Call

As Congress speeds toward its year-end pileup of “must pass” legislation, a legislative fix for the Deferred Action for Childhood Arrivals program, or DACA, remains in the balance. President Donald Trump insists it should not be tied to the annual appropriations scramble. But many Democrats — and a few Republicans — are calling for the issue to be addressed this year, with some threatening to withhold their votes to fund the government if legislation for so-called Dreamers is not attached.

Beyond the political posturing and jockeying for leverage, there is a pragmatic reason why any fix, if that is what both parties really want, should happen this year: it takes months for the government to ramp up a new program.

When he terminated DACA in September, President Trump said the program, which helps hundreds of thousands of people who came to the U.S. as children, would “wind down” by March 6. In the interim, the Department of Homeland Security allowed anyone whose status was due to expire before that date the chance to apply for one last extension, but left a narrow window to file. About a quarter of those eligible — or 22,000 people — did not make the deadline, according to U.S. Citizenship and Immigration Services, putting them at risk of deportation. People whose applications may have been delayed by the postal service will have a chance to re-file, but thousands have already lost their status and their work permits, and more will each day, until there is a legislative fix.

Trump tweeted that if Congress failed to act, he might “revisit this issue.” While what he meant is unclear, some have indicated he might choose to restart the program. Ignoring the fact that the questionable constitutionality of the program was one of the reasons he gave for ending it, USCIS is processing only those applications already received, and once that is done, they will reassign adjudicators. DACA has ended. Trump can’t simply “restart” the program.

We have seen what happens when the White House orders an agency to do something without understanding the operational implications. The president’s ban on travel from several Muslim-majority countries in January was a perfect example.

Agencies need detailed instructions to carry out these orders. They need guidance on exactly who is impacted, what to do with people who apply and how to treat them. In the case of DACA, would the president decide to make any changes to eligibility? Would he allow those who were deported after their status expired to return and reapply? Would the new program include only those who previously had status, or would it extend to new participants? There are dozens of potential permutations.

If Congress decides it wants to create legislation to provide permanent legal status — or a path to citizenship — for the Dreamers, that presents an entirely different set of implementation issues for DHS. It would likely mean new requirements and standards for adjudication, along with new application forms, which must be published for notice and comment in the Federal Register, a process that can take from six to 18 months. The agency will have to determine the fees to be charged to cover costs, what eligibility documents will be required from the applicants, where the applications are to be filed, on what grounds to deny an application, and if and how a denial could be appealed. Will the agency have to produce a document as evidence of status? Will that be different from existing documents?

What about enforcement? Are applicants who are eligible for the new status — and have an application pending — protected from deportation? What about DACA recipients deported between now and the time the new program is set up? Can they return and apply? Can you make an application if you are in deportation proceedings?

Getting this right could take months, during which time young people — the same ones Republicans, Democrats and the president all say they want to protect — will be at risk of deportation, without work or income. The end-of-the-year deadline for action is not just about who has political leverage. It is a real deadline to provide a real solution for people who must make real-life decisions right now. Congress should not leave them hanging.

Theresa Cardinal Brown is BPC’s director of immigration and cross-border policy.