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December 14, 2020 – The Trump administration’s efforts to end programs such as Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) face litigation and find support in advocacy efforts led by communities directly impacted accompanied by civil society organizations. The year ends with positive developments that confirm the impact of community organizing and collaborative work among diverse actors.
In the case of DACA, based on the Supreme Court ruling of June 18, a decision from a Judge from Maryland, and a third ruling from a federal judge in New York, the Department of Homeland Security (DHS) finally reinstated the program. The most recent judicial order found that Chad Wolf, the Deputy Secretary of Homeland Security who decided to close the program for people who had not previously applied and limit work permits to one year, did not have the authority to do so because his appointment did not follow the legal order of succession in filling that vacant position. Though DHS complied with the judicial order, it announced that it could still appeal the decision. At the same time, some State Attorney Generals of the Republican Party filed a lawsuit some months ago in a federal court in Texas challenging the legality of the DACA program. This case will be discussed at a hearing on December 22.
The good news should be taken with an air of caution while the litigation continues. The legal conflict reflects the tension between two distinct views: that the program is a result of the Executive branch overstepping its bounds, versus the conviction that the program falls within Executive powers and is an intrinsically just measure. From the latter point of view, DACA is a temporary solution that creates an important level of protection for people who entered the country during their childhood, who grew up in this country, who contribute to this society, and who for all practical purposes are permanent residents. However, there is no pathway to regularize their immigration status, reflecting limitations in existing legislation. Initially, the expectation was that DACA, adopted in 2012, would be complemented with legislation that would allow beneficiaries to apply for permanent residency.
Additionally, the year is ending with some temporary measures that provide peace of mind for TPS beneficiaries from El Salvador, Haiti, Honduras, Nicaragua, Nepal and Sudan. The Trump administration’s efforts to end the program also encountered multiple litigation strategies. The cases of Ramos v. Nielsen and Bhattarai v. Nielsen continue to develop, and rulings in these cases could be appealed as well. The government attempted to conceal the situations in these countries of origin and argued that the program should be ended since it was a temporary relief. Meanwhile, TPS advocates insist that the situations in these countries are not safe and the conditions that originally justified protective measures are still prevalent. In the absence of a legal solution, the Department of U.S. Citizenship and Immigration Services (USCIS) granted another automatic nine month extension of TPS for these countries. TPS beneficiaries will be protected by the program until October 4, 2021, as they continue to monitor how legal proceedings develop and insist on legislative measures that would allow them to apply for permanent residency. People protected under TPS have now spent decades living, working, building families and belonging to communities in the United States. The absence of a legal option towards residency leaves people dependent on temporary status despite that for all practical purposes they have lived in the U.S. just as long as permanent residents.
The battle to defend DACA has been led by young immigrants while the fight for TPS has been led by beneficiaries and their families. Their efforts reaffirm the courage of immigrants, and how immigrants have every right to raise their voices to defend their rights and promote public policy solutions. We once again call on the incoming Biden administration to take immediate executive action to protect DACA and TPS recipients, and to take initiative in creating legislation that would finally ensure a pathway to permanent residency. It has been a difficult and uncertain time for members of our communities as they work on the front lines of the Covid-19 pandemic and suffer the onslaught of an anti-immigrant agenda. Their protection must be a priority.
