Trump’s Unorthodox New Legal Strategy to Kill DACA

Through aggressive enforcement, the Trump Administration has already tried to undercut the protections afforded by daca

On Thursday evening last week, as members of Congress prepared for the government shutdown, Trump Administration lawyers at the Department of Justice were filing a rare petition before the Supreme Court. They were challenging the injunction of a federal judge in California named William Alsup, who, on January 9th, halted the Trump Administration’s cancellation of Deferred Action for Childhood Arrivals. Rather than appeal to the liberal Ninth Circuit for an immediate stay, which would have been standard practice, Justice Department lawyers were trying to circumvent judges they viewed as hostile. The Administration clearly hopes that the Supreme Court will reinstate President Trump’s daca decision, but the Justices won’t hear arguments in the case until mid-February, and, even then, it’s likely that they will send the case back to the appellate court to be adjudicated. For now, intentionally or not, the Administration’s unorthodox legal strategy gives daca recipients a chance to try to buy themselves some time.

Under the terms of Alsup’s injunction, anyone who had daca when Trump rescinded it, in September, can reapply to renew his or her status, which expires after two years. With congressional negotiations on daca deadlocked, and the President now embracing the views of anti-immigrant extremists in the White House and Congress, Dreamers have been reapplying in recent days. One of them is Luis Cortes, a twenty-nine-year-old daca recipient who came to the United States from Mexico when he was a year old. Cortes lives in Washington State, where he works as an immigration lawyer. Many of his clients also have daca, and he’s advising them to move fast. “Reapply even if your daca is good for a while, because you can squeeze out a few extra months,” he said that he tells them. “Do it while you still can.”

daca doesn’t just mean that its recipients have certain protections against deportation; it also allows them to work legally. When Trump cancelled daca, last fall, he set a series of deadlines to phase the program out. The first one, which came in early October, left twenty-two thousand Dreamers in limbo. Overnight, many of them lost their jobs. After March 5th, which is the final deadline, hundreds of thousands of other daca recipients will no longer be able to renew their status, either. Every day, more than a hundred daca recipients are losing their coverage, and, come March, that number will surge. Cortes’s status expires next year. If he reapplies now, and his renewal application is granted, per Alsup’s order, he can restart the clock for another two years.

Still, some of Cortes’s clients remain skeptical. “A lot of people have new addresses that they’d have to submit in the new daca application. They’re not sure about doing it,” Cortes told me. “ice”—Immigration and Customs Enforcement—“is coming after a lot of people. So some people are saying, ‘I don’t want to submit documents with my new information.’ ” Given the unpredictability of the Trump Administration, others don’t trust the government to actually process their applications, which are costly to file, especially now that many are losing their jobs. Cortes is sympathetic to all of these concerns, but he doesn’t see any other options for daca recipients. “If you don’t reapply now, you might not get anything,” he said.

Alsup’s order is a lifeline of sorts—at least until higher-ranking judges decide that it isn’t. Cortes happens to be one of the reasons why the ruling exists in the first place. This past fall, several different groups—including the University of California Board of Regents, three states, a city, and a county—sued the Trump Administration for cancelling daca without duly considering the consequences for its recipients. Mixed among the larger institutional plaintiffs were six daca recipients who alleged specific harms stemming from the Administration’s decision. They were lawyers and teachers, medical and law students, all of whom will be frozen out of their careers without daca. Cortes is part of the legal team representing them.

Immigrants’-rights advocates have had mixed feelings about the efficacy of challenging the termination of daca in court. Cortes concedes that he shares some of them himself. By ending daca, Trump, inadvertently, created a political opportunity to pressure Congress to help Dreamers: a clear majority of Americans want them to have a path to citizenship. The day the Trump Administration cancelled daca, Cortes told me, “We all felt an urgency. This was the time to push for a broader legislative fix.” Some worried that the lawsuits might diminish the momentum.

At the same time, Cortes has clients whose status has expired and whose lives have been immediately upended without daca. They need some sort of legal relief. “As a lawyer, I see every day how people are losing daca. I can see how much they’re harmed. There’s a significant fear that’s there,” he told me. “There are daca recipients who are taking care of their parents. They have more stable jobs because they can get Social Security numbers. The whole family unit is suffering. Some of them have committed to mortgages. They have siblings or kids.”

In testimony before the Senate last week, the new head of the Department of Homeland Security, Kirstjen Nielsen, told lawmakers that, even in the absence of a deal on Dreamers, daca recipients should not fear deportation. Nielsen reiterated the point in a recent TV appearance on CBS. “If you are a daca [recipient] that’s compliant with your registration, meaning you haven’t committed a crime,” she said, “you’re not a priority of enforcement for ice should the program end.”

These reassurances were disingenuous, according to Cortes and other advocates. Through aggressive enforcement, the Trump Administration has already tried to undercut the protections afforded by daca. One of the first things the Administration did, last winter, was eliminate all prior guidelines for how ice officers decide whom to pursue for deportation. As a result, arrests increased by forty per cent over all, and a significant number of those targeted for deportation hadn’t committed any crimes. Under Trump, ice officers are unfettered like never before in choosing whom to arrest. Both before and after the President cancelled daca, the program’s recipients have been landing in ice custody; once they’re there, it’s exceedingly hard to avoid deportation.

Cortes knows firsthand what that looks like. Last year, he started representing a daca recipient named Daniel Ramirez, a twenty-three-year-old with an infant son and no criminal record, who was picked up when ice officers arrived at his home one morning to arrest his father. They took Ramirez into custody as well, apparently in error; when ice officers discovered that they had made a mistake, rather than release him they tried to claim that a tattoo he had on his arm was proof that he belonged to a gang. Ramirez denied this, and Cortes rebutted the insinuations with expert testimony in court, but it didn’t matter. The allegations of criminal activity were enough for the Department of Homeland Security to summarily strip Ramirez of his daca status. When a federal judge eventually released Ramirez on bond, after he spent a month in immigration detention, he was left without daca. Now Ramirez is stuck in deportation proceedings.


“One of the biggest changes I’ve seen with the Trump Administration are individuals who are charged with crimes and who get detained or deported without the charge ever being cleared up,” Cortes told me. To him, this only underscores the need for Congress to act. Cortes called the legal battles over daca “a Band-Aid on a badly bleeding gash.” “We need a permanent fix,” he told me, referring to new legislation from Congress. “Daniel Ramirez represents a cross-section of the average Dreamer. He’s stuck. So we’re also looking for temporary answers, anything that will keep him here with his son—and keep other young parents here with their kids.”