President Trump is expected on Tuesday to rescind protections for young immigrants who arrived in the United States illegally as children, but with a six-month grace period to let Congress respond. The program, Deferred Action for Childhood Arrivals, grants those who qualify for the program a reprieve from deportation, which they must renew every two years.
The White House claims that DACA, which President Barack Obama announced in 2012 and which has broad bipartisan support, is illegal, but deferred action is a widely accepted legal principle. Over the last five years, DACA
has become a core part of America’s immigration landscape: DACA
has been granted to more than 800,000 immigrants, allowing them to attend school, work and contribute to their communities. Its repeal would upend the lives not only of these “Dreamers,” as participants are called, but also of their families, co-workers and employers.
Until the White House makes an official announcement, it’s unclear what ending DACA
in six months means. Does it mean that individuals can continue applying for DACA
in the next six months, and obtain permits that will expire two years afterward? Does it mean that all DACA
permits that have been issued will expire in six months, regardless of when the government approved them? Is an employer required to fire a worker in six months because her DACA
permit has expired?
At least two things are clear, however. First, the government must continue to treat current DACA
recipients as people with deferred action, who should not be removed unless they violate the terms of DACA.
The Department of Homeland Security has its own standard operating procedures that specify the process of how one’s particular DACA
approval may be rescinded. The government must continue to comply with its own guidelines and not revoke a person’s deferral arbitrarily.
Second, and most important, is what the government does with the information Dreamers gave it as part of their application — information that amounts to an admission of their having entered the country illegally, albeit without their knowledge, since they were children at the time. United States Citizenship and Immigration Services, which administers DACA, should delete all their information.
Applicants gave that information with the assurance that it would not be shared with Immigration and Customs Enforcement or Customs and Border Enforcement, the agencies that otherwise would be charged with deporting them. As the Citizenship and Immigration Services’ own guidance states, “information provided in this request is protected from disclosure to ICE or C.B.P.,” unless the applicant commits a crime or poses a national security threat.
Dreamers divulged information to the government, expecting that their information would not be shared. The information includes not only potentially incriminating information like date of initial entry and length of stay in the United States, but also details like their names, addresses, school information and Social Security numbers — precisely what the government needs to locate and detain them quickly.
As Zachary Price of the University of California Hastings College of the Law has argued, using such information would constitute entrapment. Courts have thrown out convictions of defendants who were prosecuted based on actions, statements or information they provided when they were assured that their conduct would not lead to adverse action. Dreamers facing deportation could apply the same logic here. Absent that information, it would be much harder, though not impossible, to deport them. Allowing the government to use their information would be, to quote the Supreme Court in a leading entrapment case, “shocking to the universal sense of justice.”
This is information that Dreamers would not have given the government without such nondisclosure assurances. They thought they could trust the government. In fact, in some cases lawyers advised clients who were considering applying not to, precisely, they said, because the government couldn’t be trusted.
Allowing the government to use the information obtained through DACA
to find these individuals and remove them would not only be heartless, but would set a dangerous precedent. Even if Congress, sometime in the future, were to enact a legislative equivalent of DACA, what are the chances that undocumented immigrants would once again put their faith in a government database?
In an interview President Trump gave days after his inauguration, he said that he was looking at the DACA
program with a “big heart.” Seven months later, many are heartbroken about the loss of a program that has brought thousands of Americans a sense of belonging despite their lack of “papers.” But as in so many cases under this still-young administration, the expansive cruelty of the executive branch may yet be tempered by the powers and wisdom of America’s legal system.
©2017 The New York Times News Service