By Andrew Cohen
The White House decision to rescind the Deferred Action for Childhood Arrivals (DACA) program has sparked chaos and consternation among immigrant communities in the United States. Berkeley Law, faculty, staff, and students are working with program participants and other undocumented immigrants on campus and at the law school to provide legal guidance and support.
Since DACA’s launch in 2012, more than 800,000 young undocumented immigrants—including thousands of current or former UC students—have been approved for the program. To be eligible, applicants must have arrived in the United States before age 16, lived there since June 15, 2007, and not have been older than 30 when the DACA was established.
Widely known as Dreamers, they gained security against the prospect of deportation via a two-year renewable reprieve from deportation, which provided work authorization and access to a Social Security number, state I.D. card, and regular California driver’s license. Now, their future is in limbo.
Berkeley Law Dean Erwin Chemerinsky called the White House announcement “deeply disturbing … Dreamers and immigrants are an integral part of our community. The law school, and I know the University of California, is committed to doing all we can to provide assistance to our students and their families. Berkeley Law has been a leader in establishing a campus legal services program for DACA students and will continue to do so.”
While they hail from different countries, DACA students share common tales of parents migrating to the United States to escape poverty, persecution, human rights violations, and armed conflict in pursuit of economic and educational opportunity. Chemerinsky said Berkeley Law will make available knowledgeable counselors for those who need them and work with campus and the East Bay Community Law Center (EBCLC) “to help facilitate representation where that is needed.”
EBCLC lawyers and students will hold clinics for those eligible to renew their DACA term, and meet with those not eligible to assess whether more permanent legal relief is available.
“We’re seeing fear and confusion within the entire immigrant community,” said Linda Tam ’00, who directs EBCLC’s Immigration Program. “We’ve been receiving a lot of calls from immigrants who don’t even have DACA, but are worried about what this announcement might mean for them … We need to make sure that this announcement doesn’t push Dreamers and undocumented immigrants underground.”
A murky path forward
Joel Sati, a Ph.D. student in Berkeley Law’s Jurisprudence and Social Policy Program, moved to the U.S. from Kenya in 2002. He enrolled in DACA when the program launched in 2012, earned an associate’s degree at Montgomery College in Maryland, and then a B.A. from City University of New York. Sati’s current DACA term expires in early 2019.
“DACA allowed me to plan out my career and personal paths,” he said. “That’s now thrown into flux.”
With President Donald Trump giving Congress six months to pass legislation on the issue, uncertainty and anxiety abound. Without new administrative or congressional action, according to a CNN report, nearly 300,000 people could begin to lose their status next year, along with another 320,000 from January to August 2019.
“The immediate implications for our undocumented students will vary,” said Berkeley Law professor and immigration law expert Leti Volpp. “Not all of them are protected under DACA. For those who are, their path will be shaped by when their grant of DACA is up for renewal.”
DACA and employment authorization documents will remain valid until their expiration dates, but no new applications are being accepted. Students with pending renewal applications, and those for whom DACA will expire before March 5, 2018, can apply for a two-year renewal by October 5. Students whose term expires after March 5, 2018 will receive no renewal. The Cato Institute estimates than less than one-fourth of current recipients would be eligible to apply to renew.
Sati, who wrote a Washington Post op-ed about DACA fueling a harmful narrative of “good” undocumented immigrants as opposed to others, laments other language in the immigration debate. “When people use metaphors like ‘immigrants are a wave,’ or ‘immigrants are a pathogen,’ it has implications on how people think about these issues and frames how some view the problem,” he said. “It also has a significant effect on what kind of policy responses carry weight in public discourse—a wall in response to an amorphous mass, for example.”
All eyes on Congress
Hours after the White House announcement, Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) said they will push for a version of the Development, Relief, and Education for Alien Minors (DREAM) Act. The bill would provide a path to citizenship for undocumented immigrants who were brought to the U.S. as children by their parents or guardians.
Durbin has introduced various versions of this legislation over the past 16 years, but none has made it through both chambers of Congress. In 2012, President Barack Obama signed DACA with the hope that Congress would eventually pass the DREAM Act along with comprehensive immigration reform.
Sarah Song, a Berkeley Law professor and immigration authority, foresees some delicate political maneuvering. “The Trump administration wants Congress to act, but has also made it harder for Republicans who may support the DREAM Act to vote in favor of it because of his own insistence on border security at the expense of everything else,” she said.
Song also cited the political pressure that fueled the announcement, namely a recent letter from 10 state attorneys general urging Trump to end DACA. “Their message: Rescind DACA, or get prepared for a legal challenge from us,” she said. “The move was praised by groups who advocate for stricter immigration controls and have long decried DACA as executive overreach; they argued that it’s akin to providing amnesty for lawbreakers.”
In response, 16 state attorney generals filed a lawsuit to protect DACA grantees. Filed September 6 in the U.S. District Court for the Eastern District of New York, the suit claims the Trump administration violated the Constitution’s Equal Protection clause by discriminating against Dreamers of Mexican origin, who make up 78 percent of DACA recipients; violated due process rights; and harmed states’ residents, institutions, and economies.
Two days later, University of California President Janet Napolitano announced that she had also sued the federal government over its DACA decision.
“As UC president, I’ve seen the exceptional contributions Dreamers are making to the nation,” Napolitano said. “They represent the very best of our country.”
Ari Jones ’18, an EBCLC clinical student who assists immigrant families, co-directed the East Bay Dreamers Clinic last year. While Jones knows many organizations will prod Congress to pass legislation that protects DACA recipients, they worry about the potential long-term implications.
“The Dreamer narrative often villainizes Dreamers’ parents and relatives who brought them to this country,” Jones said. “This ignores the larger geopolitical structures which push people to migrate. I’m afraid that focusing on legislation to protect Dreamers will make it harder to pass future legislation protecting their parents, relatives, and friends who do not qualify.”
Longer-term implications
Because DACA is accompanied by work authorization pursuant to underlying regulations, its revocation has significant implications for the right of recipients to legally work.
UC President Janet Napolitano has made clear that undocumented students will still benefit from the DREAM loan program and remain eligible for in-state tuition. Nevertheless, “no longer being able to legally work obviously will impose terrible financial burdens on students to support themselves and their families while they are in school,” Volpp said. “Once they graduate, unless there are other legal changes, they would also be legally barred from employment. UC needs to ensure that these students are financially able to continue their education.”
Students no longer protected by DACA also will be vulnerable to deportation, Volpp noted, because their reprieve will have ended and the government has their personal information. Although the Department of Homeland Security memo revoking the program stated that “generally” such information will “not be proactively provided” to government agencies for immigration enforcement, all information that applicants submitted will remain in the department’s system.
Napolitano has directed campus police not to contact, detain, question, or arrest individuals based on suspected undocumented status, nor to enter agreements to undertake joint efforts to make arrests for federal immigration law violations.
Volpp urged students seeking a DACA renewal by October 5 to consult with UC Berkeley’s Undocumented Student Program. That organization works with EBCLC and other partners to provide guidance and legal support for undocumented students.