DACA uncertainty continues as US Supreme Court refuses to hear case
It has been almost six years since Engineering senior Javier Contreras received a phone call from his father telling him President Barack Obama had signed a sweeping executive order that would allow Contreras to apply for a two-year renewable protection from deportation.
Since the 2012 enactment of the Obama-era policy formally known as Deferred Action for Childhood Arrivals, Contreras and approximately 800,000 non-citizen students and graduates under the age of 30 have received temporary lawful status to live, work and study in the United States. These students represent a spectrum of backgrounds and identities, yet they share the experience of having entered the United States as minors without legal documentation or have overstayed their visas. For a period, these students, coined “Dreamers”, cautiously enjoyed the protections afforded to them by DACA, but Contreras was always wary of the fragile political architecture that upheld the policy.
“These policies come with a lot of background risks and threats to our community that a lot of people, unless you are undocumented, don’t know,” Contreras said.
Obama’s use of unilateral powers to enact DACA was a decision rooted in Congress’ failure to reach a solution addressing issues faced by undocumented immigrants.
A legislative measure to provide a pathway to citizenship for undocumented immigrants brought to the U.S. as children — known as the Dream Act — was first proposed to Congress in 2001. Since then, the Dream Act has cyclically been brought back into the spotlight, including in 2012 when the Obama administration announced it would stop deporting undocumented immigrants who fit certain criteria. When President Donald Trump entered the Oval Office in 2017, his wavering position on DACA heralded an uncertain future for DACA recipients. In September 2017, Trump announced the rescission of DACA would begin on March 5, 2018. The timing of the announcement purposefully allowed for a six-month window in order to spur congressional action in addressing the issue.
As congressional leadership has spent the month of February engaging in closed door debate over DACA, lower courts in New York and California have issued injunctions requiring the continuation of DACA permit renewals. On Feb. 26, the U.S. Supreme Court added another layer of uncertainty to the status of DACA recipients, refusing to hear Trump’s bid that DACA is unconstitutional and upholding the prior injunctions.
Charles Shipan, University of Michigan professor of political science, predicted the Supreme Court would be hesitant to weigh in on the DACA program because of the court’s wariness toward political issues. Shipan cited the saturated congressional dialogue regarding immigration as a reason for why the Supreme Court would view DACA as a political issue rather than a question of legality. The Supreme Court’s deferral of the DACA case to the lower courts means DACA will stay in place at least until the U.S. Court of Appeals hears it; however, this process could take months.
Shipan believes legislative inaction on DACA reflects the hallmarks of the current congressional climate: Polarization, internal Republican party divisions and presidential pressure. Yet, Shipan suggested the emphasis on the polarization narrative sometimes overlooks other contributing factors of the DACA policy stalemate.
“There is a fair amount of agreement between a lot of Republicans and Democrats, which would be to provide a path of citizenship for the Dreamers and increase funding for border security,” Shipan said. “If that would be put to a vote right now in both chambers it would win because we would get a number of Democrats and a number of Republicans to agree to that. The polarization is a problem, but I actually think that gets overstated as a problem in this issue.”
Yet as the three government branches wrestle over the future of DACA, for many DACA recipients, including Contreras, the turmoil of the Trump administration weighs heavier than the March 5 deadline.
“Generally, if I am going to be honest, I am kind of burnt out or numb to the fact that DACA or the Dream Act isn’t going to be a reality in the next year,” Contreras said. “Just because first it was December, then it was February, now it is March 5 and nothing is going to happen on March 5. It is constant, I hate to be so pessimistic and negative, but it is just the trend that has been following.”
The uncertainty that shadows DACA has led institutions like the University to evaluate their own commitment to undocumented student populations. The University does not keep an official record of the number of undocumented students and University President Mark Schlissel has pledged to protect the identity and information of unauthorized immigrant students.
On March 2, following the Supreme Court’s decision not to hear the case, Schlissel released a statement reaffirming the University’s support. Schlissel highlighted the University actions including collaborating with other institutions, hiring Hector Galvan within the Office of Academic Multicultural Initiatives to assist undocumented students who seek support and publishing DACA resources and contacts online.
Kristin Bhaumik, the associate director of the Office of Financial Aid, emphasized the University’s commitment to the financial resources of all undergraduate students, including DACA recipients.
“DACA is a subcategory of the students who are eligible,” Bhaumik said. “We have never made that eligibility contingent on DACA. The pending rescission impacts so many things in their lives and is something I personally worry about for many of the students that I know, but the funding that this University is providing is not contingent on that status at the undergraduate level.”
Contreras was part of the fight for tuition parity as a member of the Coalition for Tuition Equality in 2011. Prior to the 2013 update of the residency pathways, undocumented students were unable to qualify for in-state tuition.
However, DACA recipients are ineligible for Federal Student Aid, which includes federal loans, grants and work study. In light of this, the University has worked with DACA recipients to find alternative funding avenues.
“It wasn’t the same time that residency was updated, but about a year or two afterwards, Provost Pollack authorized some unrestricted scholarship funding to assist undocumented and DACA-mented students with need-based resources,” Bhaumik said.
Contreras is grateful for the financial aid that has been provided to him through these allocated funds.
“Every year (the regents) vote on it to decide how much funding there will be and if there will be any funding at all. So far, we have gotten lucky; ever since 2013 they have been continuously voting to fund it,” Contreras said.
Bhaumik explained how the University’s financial aid policies are constantly being evaluated to ensure the University is acting in accordance with state and federal law.
“Right now, we think we are still operating in a way that is both legal, defensible and in the best interest of our Michigan residents, but that is constantly being evaluated,” Bhaumik said.
While DACA continues to be at the forefront of media and political dialogue, for Contreras — a student activist since high school — the constant state of uncertainty has proven exhausting.
“Years ago, if you told me there was going to be a protest in D.C., I would be the first one to hop on the bus and go talk to senators and congressmen and even Dingell, we spoke with him. But now, I don't know. I don’t see it worth my effort,” Contreras said.
Contreras continues to focus his efforts locally while looking ahead toward the future, but the cost of what a “clean Dream act” would look like never escapes far from his mind.
“To me ideally, a policy that allows me some pathway to citizenship and a peace of mind that I can finish school and start a career in the field that I want. While at the same time, not fearing for my parents and not fearing for others in my community that are not fortunate enough to attend such as prestigious university,” he said.
The debate over DACA is often grounded in partisan disagreements over funding. In January 2018, the looming government shutdown Feb. 8 funding deadline and Congress’ inability to produce a DACA deal led to a three-day government shutdown. Jesse Hoffnung-Garskof, an associate professor of American culture, noted during Obama’s administration, immigration policy was also fated by federal funding limitations.
“The crucial thing that is the backdrop for DACA in the first place is a gap between a congressional mandate to deport every deportable foreign-born person and a funding situation which actually only allows for the deportation for a much smaller number,” Hoffnung-Garskof said. “That is quite apart from the fact that actually deporting every person who is not authorized to be in the United States would be a calamitous human rights tragedy.”
Thus, prosecutorial discretion guides presidential immigration agendas that are inevitably curbed by limited resources. Yet even though Obama and now Trump both faced similar immigration policy parameters, Hoffnung-Garskof explained how the Trump administration has shifted the immigration policy landscape.
“What seems to be happening is an intentional, not necessarily an expansion of deportation per se, but an intentional disruption of what seemed to be predictable patterns of who is directly at risk and who wasn’t to create a broader risk of vulnerability,” Hoffnung-Garskof said.
The Trump administration has ushered an anti-immigration rhetoric into American politics that has codified tweets and speeches championing a border wall. This has translated to an immigration policy touting a broadened scope of deportation cases.
Postdoctoral student William Lopez echoed a similar analysis of the Trump administration, citing shifts in enforcement patterns and a rise in anti-immigrant rhetoric as the biggest changes since the election of Trump. According to Lopez, changes in enforcement patterns do not necessarily mean more deportations, but rather a shift in the predictability and reason for them occurring. Lopez attributed evidence such as a rise in single-warrant arrests and racial profiling as indicators of the uncertainty that plagues deportation anxieties.
“We also have seen folks who have lived in the U.S. for years, decades even, who have checked in with ICE as instructed every year, going to there check in and being told they are going to be deported,” Lopez said. “Again, Obama deported a record number of people and I am not arguing that there is way to do deportations correct. But for communities when there is no pattern for who is arrested and removed there is no way to plan for the future. There is no way to know what your day will look like and if members of your family will be there the next day.”