Thousands of undocumented immigrants brought to the U.S. as children could face disruptions in their ability to work, even though the Trump administration has for months been under a federal court order to renew protections under the Deferred Action for Childhood Arrivals program.
The problem arises chiefly from the Department of Homeland Security's refusal to prioritize those DACA renewals due to expire soonest. Instead, the applications are being processed in the order in which they were filed. Consequently, many so-called Dreamers who've applied to renew will see their DACA protections expire before DHS acts, increasing their risk of being fired from their jobs or, possibly, being arrested and deported.
“You can’t just say, ‘Don’t show up to work and we’ll kind of keep paying you,’ or 'wink wink, nod nod,'” said Todd Schulte, president of the pro-immigration FWD.us. “I just think we should assume that a ton of these people are going to lose their jobs.”
DHS did not respond to a request to clarify its enforcement policy for people with recently expired DACA grants.
U.S. Citizenship and Immigration Services estimates 13,090 people have grants that will expire in March. Of those, 4,470 had a renewal pending as of Jan. 31. USCIS, the division of DHS that administers DACA, makes an effort to process DACA renewals within 120 days, but it doesn’t always move that fast, according to Leon Rodriguez, director of USCIS from 2014 to 2017.
The need to process DACA renewals quickly was unforeseen last September, when President Donald Trump announced that he would sunset the Obama-era program. Trump halted DACA renewals in early October and set March 5 — Monday — as a deadline for Congress to take action to protect Dreamers. After that date, Dreamers would start losing DACA protections in large numbers.
But Congress didn't act, at least partly because San Francisco-based U.S. District Court Judge William Alsup largely mooted the March 5 deadline in early January when he ordered DHS to resume DACA renewals. A Brooklyn-based federal judge issued a similar ruling in mid-February. The Trump administration urged the Supreme Court to intervene, but the high court declined, choosing instead to allow the matter proceed through the lower courts.
USCIS resumed DACA renewals in January, but that unplanned resumption has not proceeded smoothly. “When you have a lot of stopping and starting of activity," said Rodriguez, "that poses some risk that something might be set up the wrong way and some group of people not be handled as expeditiously as they should,” he said.
“I think it is going to keep getting more chaotic,” Rodriguez said of the weeks ahead.
The agency's refusal to pull out of the queue renewals that are due to expire soonest (as, for instance, airlines do at the check-in line for passengers whose planes will take off soonest) poses an enormous problem for those DREAMers who filed for renewal after Judge Alsup's Jan. 9 order.
But another difficulty is that not many Dreamers took advantage of the court ruling, possibly because uncertainty over whether Alsup's order would be overruled by the Supreme Court left them reluctant to pay the $495 renewal fee. The Supreme Court didn't announce that it would let Alsup's order stand until Feb. 26.
Whatever the reason, of the 19,000 Dreamers whose DACA protections are set to expire in April and May, fewer than 5,000 had applied to USCIS for renewals by the end of January. DHS hasn't yet released statistics for the number of DACA applications submitted in February, but even if that number surged, that wouldn't leave time for USCIS to process the applications quickly enough to keep many enrollments from lapsing — even assuming the agency really acted within the 120-day period.
“I think that there will continue to be disruptions,” said Ali Noorani, executive director of the pro-immigration National Immigration Forum. “There are going to be thousands of DACA recipients who are going to be scrambling to file their renewal applications.”
Temporary lapses in DACA protection leave the businesses that employ Dreamers facing some hard choices. “Employers are really worried about having to make those decisions,” Noorani said. “If somebody is not authorized to work, that employer cannot employ them.”
The lapses could have other tangential effects. People who receive health insurance through an employer may need to seek out alternatives. A person with a driver’s license that expires during a lapse in enrollment could lose his or her only means of transportation.
The most serious worry for Dreamers with lapsed DACA protection is that they could face arrest or deportation.
Under the terms of the DACA program, DHS applies “prosecutorial discretion” to the roughly 683,000 people currently enrolled in the program. But several DREAMers with expired DACA enrollments have been arrested by USCIS officers since Trump took office last year.
In one recent case, a Chicago-area Dreamers was arrested in late January after a visit to traffic court over a ticket. He was released following an outcry from activists and a burst of media coverage.
During failed Senate negotiations last month to write DACA protections into law, the Trump administration pressed for tougher border enforcement and strict new limits on legal immigration as the price for codifying DACA. Democrats and pro-immigration Republicans resisted, and accused the Trump administration of being indifferent to DREAMers' fate. Each side flagged the March 5 deadline to pressure the other to make concessions, even as each side knew that deadline was less consequential than it pretended.
The blame game continues. “#Dreamers deserve far better than a President who pulled the rug out from under them,” tweeted Sen. Richard Blumenthal (D-Conn.) on Monday, “then disingenuously told them not to worry while rejecting every bipartisan effort to stop their mass deportation.”
"It's March 5," Trump tweeted in reply, "and the Democrats are nowhere to be found on DACA. Gave them 6 months, they just don’t care. Where are they? We are ready to make a deal!"
Cristiano Lima contributed to this report.