Franco Orellana was at a company event Wednesday when he learned a federal appeals court ruled against Deferred Action for Childhood Arrivals, a 2012 Obama-era immigration policy that offers two-year periods of protection from deportation and renewable work permits.
As soon as he saw the notification on his phone, his stomach dropped.
“It was pretty scary to think. I had to scroll through a bunch of different articles to try and figure out, what does this mean?” Orellana, a DACA recipient and a case manager for Denver non-profit Servicios de la Raza, said. “Am I still able to work? Will I still be able to renew? What does this mean for any of the clients that I have that are DACA recipients?”
The 5th U.S. Circuit Court of Appeals’ decision is the latest setback for DACA, which has been under constant legal threat since 2018.
For now, the federal government can continue to approve renewals for those already enrolled in DACA, but the program remains closed to new applicants.
The case now goes back to federal district judge Andrew Hanen in Texas, who has been ordered to take a look at the legality of the program following revisions adopted by the Biden Administration in August.
Colorado’s more than 13,000 Dreamers, as the program’s beneficiaries have been dubbed, have been reminded of the familiar limbo they’ve found themselves in for most of their lives.
Marissa Molina, who works as the Colorado state director for immigration advocacy group FWD.us and was a beneficiary, said the unclear future is a cause of anxiety for DACA recipients.
“While we don't know the exact timing of what these further court actions are gonna look like, we do know that the chances of the DACA program surviving much longer are significantly worse than they were a few days ago,” Molina said.
Several DACA recipients and advocates CPR News interviewed called for members of the United State Congress to pass a bill granting Dreamers a legal path to permanent citizenship.
“We need a permanent solution to make sure that the contributions that Dreamers like me have been putting into this country for the past 10 years, not only could remain, but are able to expand to benefit more folks,” entrepreneur Alejandro Flores-Muñoz said.
Challenges to DACA have been commonplace for years now. Orellana has noticed he and other DACA recipients have gotten used to the anxiety, but that’s unsustainable.
“It's something we're used to. I think there's still that underlying fear, but we still have to look strong and maintain ourselves. But I think it is starting to wear away at all of us,” Orellana said.
How elected Colorado leaders have reacted
Colorado’s congressional delegation has remained relatively quiet following the court’s decision. Only Democratic Sen. Michael Bennet issued a statement denouncing the decision.
“We cannot accept another 10 years of excuses and political rhetoric. Congress must act,” Bennet tweeted. “It’s time to come together and get this done.”
Congressional Republicans have been the main stumbling block for various efforts to provide a pathway to legal status for DACA beneficiaries and other Dreamers. But in Colorado, GOP U.S. Senate candidate Joe O'Dea and CD-8 candidate Barbara Kirkmeyer, are both on record as saying that they support providing a path to citizenship for Dreamers.
What’s next for DACA?
The latest legal twist is yet another reminder that DACA remains under threat, despite not garnering as much attention as other challenges that have arisen in past years, said Julia Gelatt, a senior policy analyst with the Migration Policy Institute (MPI).
“We’ve all seen the program eke by and remain on life support through various court challenges, but it now seems like the program is very close to termination,” Gelatt said.
In the 10 years that DACA has existed, many beneficiaries have started working legally, purchased homes and started families, Gelatt said. The program has been a source of upward economic mobility for them.
Yesterday’s decision from the Fifth Circuit Court doesn’t immediately change anything for Colorado’s more than 13,000 current DACA beneficiaries, Gelatt said. The federal government will continue processing renewals for those who have already been granted deferred action, though new applicants cannot be approved for the program.
But Colorado is currently home to almost 8,000 more DACA-eligible people who are not enrolled in the program, according to MPI’s estimates. For them, DACA may never actually be a possibility.
“Even if DACA does survive these legal challenges, it is a very limited program. It’s helping a narrow slice of the unauthorized immigrant and Dreamer population,” Gelatt said. “DACA was such a lifeline to people as they were entering into adulthood, enabling more affordable college access and access to jobs that used DACA holders’ professional credentials.” The program has only ever been open to people who met a very specific requirements, including living in the U.S. continuously since June 2007, graduated high school or obtain an equivalent and being under 31 years of age as of June 2012.
DACA is facing challenges in court over whether the protections it creates for young, undocumented immigrants violate the Immigration and Nationality Act of 1952, said Violeta Chapin, a law professor at the University of Colorado Boulder and director of the Immigration Defense Clinic.
Chapin said in the worst-case scenario for Dreamers, is if the case goes all the way up to the Supreme Court and the court strikes down the policy, leaving hundreds of thousands of DACA recipients vulnerable to deportation. But, Chapin doesn’t believe that’s feasible.
“We have 11 million undocumented people that have been living in the United States for over two decades now. And no presidents, regardless of how much they wanted to, could actually find all of them and remove them,” Chapin said. “Whether or not the immigration system would actually go after DACA recipients and actually deport them is a real question. Because It's proven physically and practically impossible for many years now.”
Chapin said the outcome will be difficult to predict. What’s likely to happen is DACA will face litigation for the next few years. She said while that may seem like a good thing, it just means added stress for those desperately awaiting finality.
“The most difficult part about it as the lawyers and the presidents muck around screwing around with people's lives, it really does have real impact on, on people and their families,” Chapin said.
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