This analysis is the second in a series on the history of the DACA program, which provides protection from deportation to certain illegal immigrants who entered the US when they were younger than 16.
Many people are deeply impacted by US immigration policy, as one second grader made clear during a meeting with First Lady Michelle Obama in May 2010.
Michelle Obama visited an elementary school in the DC suburb of Silver Spring, Maryland during an event with Mexican First Lady Margarita Zavala.
Their visit included a lesson on healthy eating and an exercise activity, which highlighted key aspects of Michelle Obama’s signature anti-obesity campaign.
But her visit turned to the thorny issue of immigration policy when a second grade girl had the opportunity to ask Obama a question.
“My mom says that Barack Obama is taking everybody away that doesn’t have some papers,” the girl said.
“That’s something that we have to work on, right? To make sure that people can be here with the right kind of papers, right? That’s exactly right,” Obama replied.
Her answer didn’t satisfy the girl, who disclosed that her mother was undocumented.
“But my mom doesn’t have papers,” the girl responded.
“Well we have to work on that. We have to fix that and everybody’s got to work together in Congress to make sure that happens. That’s right,” Obama answered before proceeding to the next question.
The school district did not disclose whether the second grade girl was also undocumented.
Regardless, the girl knew her mother was undocumented and could be deported from the US due to her immigration status.
A spokesman for the Department of Homeland Security (DHS) said investigations conducted by Immigration and Customs Enforcement (ICE) are based on, “solid law enforcement work and not classroom Q and As,” which meant immigration officials wouldn’t use the girl’s disclosure of her mother’s immigration status to deport her mother from the country.
Michelle
Obama said members of Congress needed to work together to reform America's immigration policy.
But despite the clear moral case for immigration reform, Congress wasn’t able to work together to approve a solution.
Immigration reform dies in Congress
In June 2013, the US Senate approved a bill that would provide a path to citizenship that would take 13 years for most of unauthorized immigrants currently in the US, and less time for agricultural workers and dreamers.
The bill also increased border enforcement, mandated all employers use the E-Verify system to vet the immigration status of job applicants, instituted an entry-exit visa-tracking system to prevent people from overstaying their visas, and expanded and streamlined legal immigration.
But immigration reform was not approved by the Republican-led House of Representatives.
In June 2014 House Majority Leader Eric Cantor lost a Republican primary in Virginia to tea party challenger David Brat. Many blamed Cantor’s loss on his alleged willingness to compromise with Democrats on immigration.
Cantor’s loss effectively ended any hopes of passing immigration reform in the House.
Congress didn’t approve a version of the DREAM Act, either.
Another Executive Action
Two and a half years after DACA was created, the Obama administration decided to expand eligibility for DACA and create a similar program that would protect illegal immigrants from deportation who were parents of US citizens or lawful permanent residents.
On November 20, 2014, Secretary of Homeland Security Jeh Johnson expanded eligibility for the DACA program, which allows illegal immigrants, who entered the US when they were younger than 16, to obtain permission to legally remain in the US, if they met certain criteria.
The original DACA policy required recipients to be 30 or younger when it was first approved. The revised DACA policy allowed people to qualify as long as they entered the US under the age of 16, regardless of their current age.
The original DACA policy required recipients to have entered the US before June 15, 2007. The revised DACA policy expanded eligibility to illegal immigrants who entered the US before Jan. 1, 2010.
Under the revised policy, DACA recipients were given permission to remain in the US, and obtain authorization from the government to work legally in the US, for three years before they had to renew their status. Previously, they were required to renew their status every two years.
In the same memo, Johnson also created a program that granted parents of a US citizen or lawful permanent resident the ability to remain in the US, and obtain work authorizations, for a period of three years, subject to renewal, if they met certain requirements.
This program became known as Deferred Action for the Parents of Americans and lawful permanent residents, or DAPA.
DAPA rolls off the tongue a bit easier than DAPALPR.
The parents of DACA recipients weren't eligible for DAPA unless they had a child who was a US citizen or lawful permanent resident.
To be eligible for the DAPA program, recipients had to have continuously resided in the US since Jan. 1, 2010, be physically present in the US both when the policy was enacted and when requesting to be part of the program, not be an enforcement priority under existing guidelines, and present no other factors that make the grant of deferred action inappropriate.
Primary Source: DAPA Memo
Secretary Johnson wrote that providing DACA and DAPA recipients deferred action from deportation was in America’s interests because these policies encourage them to come out of the shadows, submit background checks, pay fees, apply for work authorization, and be counted.
“The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department’s limited enforcement resources — which must continue to be focused on those who represent threats to national security, public safety, and border security,” Johnson stated.
Other federal regulations provide people who are lawfully present in the US, such as those who receive DACA and DAPA, eligibility for Social Security and Medicare benefits, and Earned Income Tax Credits.
Out of the shadows
In his speech announcing the new policies, President Barack Obama said he was moved by personal stories of people affected by US immigration policy.
“Over the past few years, I have seen the determination of immigrant fathers who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids,” Obama said.
“I’ve seen the heartbreak and anxiety of children whose mothers might be taken away from them just because they didn’t have the right papers. I’ve seen the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha; students who bravely come out as undocumented in hopes they could make a difference in the country they love.”
Malia and Sasha are Obama's daughters.
Obama said his policies would allow undocumented people who qualify for these programs to live without fear of deportation.
“Now here’s the thing: We expect people who live in this country to play by the rules,” he said. “We expect that those who cut the line will not be unfairly rewarded.”
“So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes -- you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law.”
Legal challenge
Several Republican states, including Texas, sued the Obama Administration over these new policies.
Federal Judge Andrew Hanen determined the Obama Administration had violated the Administrative Procedure Act (APA) and authorized a nationwide injunction that prevented the federal government from expanding DACA and implementing DAPA.
Before the lawsuit was argued before the Fifth Circuit Court of Appeals, Texas Attorney General Ken Paxton stated he was confident the legal challenge would likely succeed.
“This lawsuit transcends national immigration policy – this is about a president who has recklessly acted outside of the boundaries of the U.S. Constitution, circumventing Congress to rewrite the law as he sees fit,” Paxton said in a statement. “The Obama Administration’s unilateral action bestows a host of benefits, from entitlement programs to tax credits, to individuals who are actively breaking the law.”
The Fifth Circuit determined DAPA, and DACA expansion, violated the APA and affirmed the nationwide injunction.
Primary Source: Fifth Circuit Decision
In June 2016, the Supreme Court, which heard the case in April, reached a 4-4 tie, following the death of Justice Antonin Scalia in February.
The Supreme Court’s decision was one-sentence long.
“The judgement is affirmed by an equally divided court.”
The split court created no new precedent and left in place the Fifth Circuit’s ruling, which blocked the Obama Administration from implementing DAPA and expanding DACA.
DAPA, which was blocked by a preliminary injunction, never took effect.
The Obama Administration’s original DACA program, which it had implemented in 2012, was not part of that case and wasn’t affected by these court decisions.
The original DACA program remained in place for the remainder of Obama’s presidency.
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