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How DACA Could Outlast Trump

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Congress and the White House spent much of this week trying to fix the problem President Donald Trump created in September when he abruptly canceled Deferred Action for Childhood Arrivals, an Obama-era program that provides renewable two-year deportation protections and work permits to undocumented immigrants who entered the U.S. as youths.

But even if Congress and the White House fail to hash out a deal to protect Dreamers, as the young immigrants are known, DACA could remain in effect through 2020, and possibly into a new administration.

DACA could outlast Trump because Dreamers and their advocates aren’t solely relying on Congress to help them. They’re also fighting Trump’s move in the courts, where they won a key victory Tuesday night: a national injunction blocking Trump from phasing out DACA.

The injunction could make it much harder than the White House thought to make DACA go away. And although U.S. District Judge William Alsup’s ruling doesn’t allow new DACA applications, it lets people who hold the protections keep renewing them past the March 5 deadline set by the Trump administration. If litigation drags on for several months, as it likely will, DACA might remain in effect through 2020, and possibly into a new administration.

Deferred Action for Childhood Arrivals recipient Gloria Mendoza participates in a protest in support of a standalone Dream Act in New York on Jan. 10. (Lucas Jackson / Reuters)

“It’s entirely possible to see that some people will still have DACA permits on Election Day in 2020,” Michael Kagan, a law professor at the University of Nevada Las Vegas, told HuffPost. “I’m not predicting that. But it is now possible that people will be able to renew DACA permits later this year and some of those permits may still be valid in November 2020.”

The 9th U.S. Circuit Court of Appeals or the Supreme Court could invalidate the injunction. But Attorney General Jeff Sessions, who plans to appeal the district court’s decision, will face an uphill battle trying to convince the appeals court that the U.S. government needs to start canceling DACA work authorizations before the courts decide the lawsuits, according to Stephen Legomsky, the former chief counsel for U.S. Citizenship and Immigration Services. The program has hummed along for five years without any legal challenge. 

“There’s no irreparable harm and there’s no urgency,” Legomsky told HuffPost. “The administration is going to be hard-pressed to come up with a reason to stay the injunction during the long period of time this case will be pending … If Congress does not enact a Dream Act, I think it’s possible that people could renew DACA into the next administration.”

Litigation wouldn’t have to drag on long for that to happen, provided the injunction remains standing. If the Supreme Court hasn’t decided the case by next January and Congress hasn’t passed some version of the Dream Act, the two-year DACA renewals will start extending into the next presidential term. If Trump were to lose his re-election bid, DACA could wind up outlasting him ― even if those challenging the cancellation of DACA ultimately lose in court. 

the issue remains unresolved. That question must be answered before the discovery period ― when parties in a lawsuit disclose evidence to one another ― can end, so the case can move to trial.’ data-reactid=”27″>Lawyers for the administration appealed the ruling all the way to the Supreme Court, arguing that the records amount to executive deliberations that don’t have to be disclosed to the court. They won temporary protection from having to give up the documents, but the issue remains unresolved. That question must be answered before the discovery period ― when parties in a lawsuit disclose evidence to one another ― can end, so the case can move to trial.

And Alsup’s injunction ruling says those challenging the Trump administration are likely to win on their claim that canceling DACA “was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.”

If Alsup rules against the White House at trial, the government will almost surely appeal to the 9th U.S. Circuit Court of Appeals, and appeal again if that court decides against them. The case is likely to wind up before the Supreme Court. Each of those steps takes time. All the while, provided the injunction is left standing, DACA recipients will be able to keep renewing their status for another two-year period.

It’s also possible that a different set of consolidated lawsuits filed in New York to challenge the end of DACA could result in a separate injunction. 


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