“I’ve talked to some senior members [of Congress] you would know, and they’ve said ‘Don, don’t they know they’re not going to be deported?’”
On a Saturday morning in a south suburban Starbucks, Congressman Don Bacon is talking about DREAMers and President Trump’s Sep. 5 decision to sunset their Deferred Action for Childhood Arrivals (DACA) status in 6 months.
“No, they don’t [know],” said Bacon. “I’ve talked to them. They are scared. Some of our guys don’t realize that they could be deported. Yeah, but when you hear the rhetoric, this is your life.”
Lives that can only mostly remember growing up in the United States now face a much harsher reality. Established in an executive order by President Obama in 2012, the DACA program gives deferred status in immigration proceedings and work authorization to undocumented immigrants that were brought into the United States as children.
They are also known as DREAMers in honor of the legislative proposal that offered them a path to citizenship, first introduced by Senators Dick Durbin (D-Ill.) and Orrin Hatch (R-Utah) in 2001. Though it passed the House in 2010, it never got past a Senate filibuster to become law.
There’s a real possibility today that having a tail light out on a car could put a DREAMer in deportation proceedings, without a lawyer to represent them, ultimately sending them to a country they know little to nothing about.
Almost a half million undocumented immigrants are apprehended every year and nearly 90 percent of them are deported. In April, the Washington Post examined 675 out of 27,362 immigration apprehensions under the Trump administration. Almost half had no criminal convictions or were guilty of a traffic violation. Because deportation is a civil hearing, deportees do not have a right to a government attorney.
The end of the DACA program means the loss of a Social Security card and the ability to get a job and pay taxes for DREAMers. In Nebraska, it also means the loss of a driver’s license and professional licenses. Those last two privileges DREAMers earned by working with a 2/3 majority of the Nebraska Unicameral to overturn not just one, but two vetoes by Nebraska Republican governor Pete Ricketts.
Trump’s decision to rescind DACA puts all of that in limbo.
Understanding legal distinctions are key to understanding the constitutionality of DACA and the stated basis for Trump’s decision. Legislators like Congressman Bacon face a challenge in appeasing some of their constituents and doing the right thing in their own minds. DREAMers face the loss of everything they’ve grown up with and known, feeling like political pawns by a president determined to fulfill his promise of building a border wall between the U.S. and Mexico.
DACA and APA
Though Attorney General Sessions called DACA an “unconstitutional exercise of authority by the Executive Branch” when announcing President Trump’s decision to end the program, it has never been successfully challenged in court since its inception in 2012.
It was only the threat of a challenge from ten Republican state attorney generals, including Nebraska’s Doug Peterson, which could take years to decide, that prompted Trump’s decision.
The original DACA decision faced two significant legal challenges, neither of which went anywhere.
“The initial legal challenges to DACA came about almost from the outset,” explained Creighton University law professor and immigration law expert David Weber, “filed by some Immigration and Customs Enforcement (ICE) employees who were claiming that the president was not fulfilling his constitutional obligation, to faithfully administer all the laws of the United States. That was essentially dismissed because lack of standing. This is an employer/employee dispute and it didn’t really go anywhere.”
That didn’t stop the man recently pardoned by President Trump for a contempt of court conviction for racial profiling.
“Sheriff Joe Arpaio brought a challenge in the D.C. District Court and that was dismissed also right away as lacking standing,” said Weber. “I don’t think they showed that there was going to be any injury to the state by just allowing these people to remain here temporarily. That was dismissed also right away as lacking standing.”
It was Obama’s second significant executive order in late 2014, Deferred Action for Parents of Americans (DAPA), with a small expansion of DACA, that a federal judge in Texas stopped on procedural, not constitutional, grounds.
Federal Judge Andrew Hanen of Brownsville, Texas heard the challenge to DAPA. His political views at the time were well-known.
“That judge had been very critical of the Obama administration,” explained Justice For Our Neighbors Deputy Executive Director Shane Ellison, “very critical of unlawful immigration, had made those opinions quite vocal in decisions that were, frankly, in many ways, crossing the line in terms of questioning whether or not he was neutral about these kinds of issues.”
Despite his publicly conservative views, Hanen ruled that the state of Texas had standing due to the cost of issuing drivers licenses to DAPA recipients, but stopped its implementation on procedural grounds, leaving DACA alone.
“[T]his case does not involve the Deferred Action for Childhood Arrivals program,” Hanen wrote early in his decision. He added later “The States do not dispute that Secretary Johnson has the legal authority to set these priorities, and this Court finds nothing unlawful about the Secretary’s priorities. The HSA’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence.”
It was how the law was implemented that caused the judge to allow the injunction.
“That first decision said you didn’t go through the proper steps under the Administrative Procedures Act (APA) to create the DACA program,” explained Ellison, “[DACA] is more of a rule, like a regulatory rule, than it is a policy guiding tool. APA allows for the issuance of policy guidelines through memoranda, but highly formalized processes should be issued through [formal] regulations.”
Ironically, according to Weber, the APA argument is the basis for several states, including Iowa, to challenge Trump’s decision to end DACA.
“That’s the $64,000 question,” said Weber. “If what happened with DAPA and expanded DACA was that it was struck down on the grounds of the APA, for failure to comply with the notice-and-comment period, there’s a pretty good argument that President Trump’s recent decision to rescind DACA would also have been required to go through that same notice-and-comment period.”
The DAPA Memo – Lawfully Present versus Not Accruing Unlawful Presence
The 5th Circuit Court of Appeals upheld Hanen’s decision — 2 Republican appointees for and one Democratic appointee against — but also added a constitutional consideration. The two judges focused on two words – “lawfully present” — from a memorandum announcing the DAPA policy by then Department of Homeland Security Jeh Johnson.
“Deferred action does not confer any form of legal status in this country, much less citizenship;” reads Johnson’s DAPA memo, “it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”
In their decision, the judges make this sentence in the 5-page memorandum a centerpiece in upholding Hanen’s injunction.
“At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis,” the 5th Circuit Court of Appeals decision reads near the start of its 70-page decision, referencing that sentence in the Johnson memo.
To understand what “lawfully present” means under immigration law, it’s important to understand “unlawful presence.”
“The Immigration and Nationality Act defines unlawful presence, and it defines it in the inverse,” explained Ellison. “It doesn’t say what lawful presence is. It says what unlawful presence is. People who have entered without a visa, people who have overstayed a visa, these are the kinds of things where you’re going to be accruing unlawful presence, and then there’s a series of exceptions.
One of the key exceptions is for youth.
Ellison provided an example. “ If you are ten years old and enter the U.S. without a visa, or overstay your visa—activities that ordinarily would cause one to accrue unlawful presence—since you are under the age of eighteen, the law currently says that you are not accruing unlawful presence. You would be present in the U.S. without status, but technically, you would not be unlawfully present.”
Unlawful presence is used to determine the amount of time an individual can be barred from re-entering the country. For instance, 180 days of unlawful presence will bar re-entry for 3 years.
“Secretary Johnson had a slip of the tongue, if you will, or his lawyers who wrote the memoranda,” explained Ellison, “and said something that ended up being the centerpiece of the challenge [to DAPA].”
That decision faced a 4-4 tie at the Supreme Court and remained in effect. DAPA was stopped, and with it an expansion of DACA, but the original DACA program remained untouched and remained in full effect until Trump’s decision.
Trump’s stated intention of seeking a legislative fix requires Representative Bacon and his Congressional colleagues to act quickly against a very crowded schedule. Bacon readily admits he’s still learning when it comes to immigration, not being on any committee that oversees it. While not ready to commit much beyond a temporary reprieve, Bacon is a co-sponsor of the BRIDGE Act, essentially creating a 3-year DACA program.
Bacon’s answers triangulate his feelings, his district and his colleagues.
“I am convinced – and I do a lot of events, seven events a day. I’ve done six public town halls, but I’ve done even as many private town halls. I go out everywhere. If I come back and say we did the legal fix for DACA; we’ve done nothing over here to fix the [immigration] problem, our constituents would be mad.
“The majority in our district want to support DACA, but they also want to have improvements in the immigration system so we don’t do this again next year or the next year. I really feel like I owe the district a more comprehensive deal.”
He says he can’t support the DREAM Act and a pathway to citizenship for DREAMers.
“Not yet. I think if we put that in there right now, we won’t solve the problem. I want these young folks to have assurance they will not be deported. I think a permanent legal status is the right way for now, with security. We’ll come back to that some day on the DREAMers.”
For Bacon, a full border wall with Mexico makes little sense, but an increased focus on enforcing visas is a necessary fix.
“There is a place for some walls and security in some areas that would work. Then you go to Texas, and I talked to Republicans in Texas that are on the border. They say there’s no way you can put a wall here. It won’t do any good.
“I think there’s places that we could afford to put some physical security. I think there’s areas where we maybe want electronic security and more manning. We need to have a visa compliance system that helps us find somebody when they overstay their visa. I think employer enforcement is really what that leads to.”
From an agricultural state, Bacon is more open to permanent residency or citizenship for farmworkers.
“I am more moderate when it comes to seasonal workers or having the right visas to allow people to come in and do it legally. I think we want to support our agriculture. Agriculture needs it, so I’m amenable to a legal process, but I think there should be legal mechanisms. Right now, it’s through Congress, I believe, and burdensome on these guys, and we should make it easier.”
Bacon is very clear, however, about his personal feelings on DREAMers.
“The ones I’ve met, there would be no way in hell you would deport them. I’ll have to say it that way. It tugs at your heart when you hear a kid say hey, I’ve been hiding my whole life. That tugs at me . . . it becomes clear and you know when you see firsthand and shake their hands that deporting’s not an option, period, to me. For someone who’s been otherwise law-abiding and someone who’s trying to be a good American – it’s what home they know.”
Overall, political life has been a different transition for the former Air Force general.
“I found as a commander at Ramstein [Air Force Base], I had probably a 98 percent cohesive team I’m working with. I think most people liked the work I was doing as a commander. The bottom line is you’re on a team and you’re all pulling together.
“Here, obviously you’re trying to get 51% at election. It’s a different dynamic. I’m not used to people calling me [names] on social media. You didn’t get that as a general. If they were, they were probably quiet about it.”
He remains hopeful he can get his new team to solve this.
“In the end, we got to be above pettiness out of this stuff. We have a problem; we got to fix it. I think immigration is one area that is tailor-made for bipartisan solutions because we have folks on both sides of the aisle that want to get stuff done on this.”