Future of DACA program remains uncertain, a decade after it began

Court challenges and legislative inaction make life in the U.S. precarious for some younger immigrants

DACA supporters rally outside of the Supreme Court in 2020, part of the legal uncertainty that has followed the Obama-era program in the decade since it was put in place. (Bill Clark/CQ Roll Call fie photo)
DACA supporters rally outside of the Supreme Court in 2020, part of the legal uncertainty that has followed the Obama-era program in the decade since it was put in place. (Bill Clark/CQ Roll Call fie photo)
Posted June 14, 2022 at 5:00am

Bruna Sollod first applied for the Deferred Action for Childhood Arrivals program weeks after it began in 2012. After she was accepted, the Brazilian-born college student was able to avoid deportation, work legally and enjoy some stability as she began her adulthood.

Ten years later, Sollod still benefits from the protections that former President Barack Obama put in place. Except now, she’s lived in the U.S. for more than 20 years, is well into her career and worries about being separated from her 3-month-old son if the program is rescinded.

“As a 20-something-year-old when I first got DACA, I thought for sure that by the time I got here, in this stage of life, by the time I had a family … that I would be a citizen,” said Sollod, who works as communications director at United We Dream, an advocacy group for immigrant youth.

A decade after the DACA program began, its fate is deeply uncertain following numerous court challenges and years of legislative inaction. That also means uncertainty for Sollod and other original so-called Dreamers, as well as a younger generation of immigrants who can't access the benefits at all.

Last July, U.S. District Judge Andrew Hanen in Texas blocked new applications to the program, leaving roughly 80,000 young immigrants brought to the U.S. as children ineligible for its protections.

The U.S. Court of Appeals for the 5th Circuit is scheduled to hear oral arguments next month in that case, initiated in 2018 when a group of Republican-led states challenged the program over how the Obama administration created it.

And in Congress, lawmakers’ yearslong inability to find a permanent legislative solution for Dreamers appears unlikely to change as the midterm elections draw closer and tensions over immigration and border security grow.

A controversial history

The Obama administration began the DACA program on July 15, 2012, to protect young immigrants who had been brought to the U.S. as children through no choice of their own. In the subsequent decade, more than 800,000 people gained DACA benefits.

But the program — created by the executive branch, not Congress — has always been controversial and precarious. In 2017, former President Donald Trump vowed to end the program, calling it an “amnesty-first” approach to immigration policy and urging a legislative solution.

Trump’s attempted termination forced a reckoning in Congress, with lawmakers eventually eyeing a deal that would protect Dreamers in exchange for added border security. The agreement never came to fruition, and partisan strife over immigration and Trump’s border wall ultimately caused a government shutdown.

Then, in 2020, the Supreme Court ruled against Trump’s rescission, leaving DACA protections in place, though a subsequent memorandum from then-acting Homeland Security Secretary Chad Wolf attempted to curb eligibility.

“The president at that time, himself, was ambivalent about whether to keep the program or not,” Jeanne Batalova, a senior policy analyst at the Migration Policy Institute, said. “On the one hand, saying that these are good people; on the other hand, trying to undo the program, reflecting very contentious attitudes within the Republican Party.”

Immigrant advocates were hopeful after the January 2021 inauguration of President Joe Biden, who had campaigned on a humane immigration policy he promised would differ from Trump’s. But his efforts to undo Trump-era immigration actions have been repeatedly hampered in court.

The July 2021 court decision that blocked new applications was a setback for many immigrants, particularly people who had been unable to apply for DACA under Trump. The Biden administration has promised regulatory action to strengthen and preserve DACA, but a final rule is still forthcoming.

“One of the first policy announcements in the very beginning of the presidency was a promise to fortify DACA,” Batalova said. “It hasn't really happened.”

Meanwhile, the pressure on Congress to find a legislative solution has only grown stronger. In late 2021, Democrats attempted to provide a pathway to citizenship for millions of undocumented immigrants through budget reconciliation, but that plan was stymied by parliamentary problems and opposition from moderates.

For lawmakers angling for new immigration policy, many of whom were not even in Congress when DACA was created, the 10-year mark is a sober reminder that deep divisions over immigration have stymied protection for a group of immigrants with broad support among the American public.

“It’s another reminder that immigration reform is long overdue,” said California Democratic Sen. Alex Padilla, who leads the Judiciary Committee’s panel on immigration. “These immigrants deserve a heck of a lot better.”

Legislative morass

With the midterm elections drawing closer, hope for a legislative solution on DACA this year is increasingly dim. The House in early 2021 passed legislation allowing undocumented immigrants brought to the U.S. as children to apply for citizenship, but the bill has not been considered in the Senate.

“We've had some court drama, but we haven't had enough congressional activity to really give the DACA recipients any hope that there’s a permanent pathway to citizenship,” said Illinois Sen. Richard J. Durbin, the Democratic majority whip.

Bipartisan immigration talks are currently underway — and DACA will be a part of those talks, Durbin said — but they have yet to yield any definitive progress.

Rep. Lucille Roybal-Allard, D-Calif., who in 2001 introduced the first piece of legislation to protect undocumented immigrants brought to the country as children, is decidedly pessimistic about achieving anything this year.

“Particularly during this pandemic, it has been proven that these young Dreamers who are our teachers, our health care workers, who take care of the elderly — are absolutely essential to providing a quality of life in this country,” Roybal-Allard said.

On Republicans’ unwillingness to pass protections for Dreamers, she said, “I honestly don’t understand it. And I don’t know what it will take.”

Republicans have little interest in compromising with Democrats on immigration bills as the Biden administration seeks to end pandemic-era asylum restrictions, a scenario the government has warned could bring illegal border encounters to 18,000 per day.

Even Republicans who supported bills to provide relief to Dreamers in the past have soured on those proposals amid historically high migration at the U.S.-Mexico border.

Sen. Lindsey Graham, R-S.C., who co-sponsored legislation with Durbin in early 2021 that would provide a pathway to citizenship for undocumented immigrants brought to the U.S. as children, said Dreamers were “victims” of broader divisions over immigration.

“This is a sympathetic population, but this complete collapse at the border’s gonna make any deal very difficult,” Graham said. “You can't do anything on legalization, including DACA, until you stop the flow of illegal immigrants.”

Living with uncertainty

As Congress remains paralyzed over immigration policy, immigrant advocates nervously await the outcome of the DACA case in the 5th Circuit. But for people who came of age after new applications to the program were blocked, the damage has already been done.

Kirlish Orozco, a college sophomore in Florida who immigrated to the United States from Nicaragua when she was 2 years old, had just applied for DACA when Hanen’s ruling came down.

“I had a full-ride scholarship to the college of my choosing. I was planning on buying a car. I was planning on going out of state — and those were all things that were taken away from me,” Orozco said. “I wasn't able to do any of the things that I planned for.”

Orozco, who hopes to become an immigration lawyer, is unable to apply for the internships that would provide valuable experience in her intended field. Her undocumented status creates an instability that other college students her age don’t have to face.

“You're always double-thinking every single action that you make, because one mistake can jeopardize your entire future,” she said.

Sollod and other DACA recipients who have protection and can reapply have more certainty than Orozco — but they still live with the knowledge that their protections could end through the actions of a future president or decision by a court.

And their ties to the U.S. grow deeper every year: Sollod's son is one of more than 250,000 citizens with a parent receiving DACA protections.

“I think it's really, really hard to be reaching this milestone, because it's bittersweet,” Sollod said. “It's the biggest success story we have on immigration in 40 years, but it's also sad in that there are no permanent solutions yet.”