10 years later, DACA program for 600,000 "Dreamers" remains in legal peril

Flavia Negrete was 15 years old and a junior in a Maryland high school when she and her mother watched President Barack Obama announce that his administration would offer work permits and deportation relief to young unauthorized immigrants like her who had arrived in the U.S. as children.

"My mom is in the kitchen and she starts crying," said Negrete, who was born in Peru and came to the U.S. with her parents when she was 4. "At that point, I didn't understand how good it was for me until a day later I started reading more about the program."

Ten years ago, the Obama administration established the Deferred Action for Childhood Arrivals (DACA) policy to shield unauthorized immigrants brought to the U.S. as minors from deportation if they met certain requirements, including arriving in the country by age 16 and before June 2007, studying in a U.S. school or serving in the military and lacking any serious criminal record.

DACA allowed Negrete to attend college in Maryland, earn a bachelor's degree, volunteer as an EMT and land a research internship at the Food and Drug Administration that would later sponsor her master's degree in bioinformatics, which she earned in December 2021.

"This is the beauty of DACA," said Negrete, who is applying for medical school to specialize in gene therapy. 

The Obama administration created DACA in response to Congress' failure to legalize these immigrants, who became known as "Dreamers," a moniker stemming from the Dream Act proposals dating back to 2001 that would place them on a path to U.S. citizenship.

While Obama called it a "stopgap measure" when it was created in 2012, DACA has remained in place for a decade, outliving the Trump administration, which unsuccessfully sought to dismantle the program as part of its broader crackdown on legal and unlawful immigration.

Former Homeland Security Secretary Janet Napolitano, who signed the memo creating DACA in 2012, said she did not think then that the policy would still be in place 10 years later. "DACA was intended to be temporary, in light of Congress' inability to pass a Dream Act," Napolitano told CBS News. However, she added, "there's still a need for it until Congress acts."

But DACA's future is more uncertain than ever. A federal court is widely expected later this year to side with Republican officials in a lawsuit that argues DACA is unlawful, and could order its termination, prohibiting those enrolled in the program from renewing their work permits and deportation protections.

Absent action from Congress, a court ruling that terminates DACA would place more than 600,000 immigrants, many of whom have relied on the program to work, study and raise families in the U.S. for their entire adult life, in legal and financial limbo.

"I grew up with DACA. I was blessed to be a part of this program. But unfortunately, it's a program that hangs on in the hands of very few people in Congress and in government," Negrete said, noting that DACA's end would derail her dreams of attending medical school. "It holds so much weight over my life."

Immigrants like Negrete who first applied for DACA as teenagers are now full-fledged adults with careers and often families of their own. Fewer than 22,000 DACA recipients were younger than 21 at the start of 2022, while 405,000 were between the ages of 21 and 30 and 184,000 were older, government data show. 

Roughly 159,000 immigrants enrolled in DACA have reported getting married, according to the U.S. Citizenship and Immigration Services statistics. A 2021 study found that roughly 170,000 of the program's beneficiaries have become parents of U.S citizen children, and that many of them had bought homes.

"A cliff"

To the surprise of many, DACA survived the Trump administration, which argued the policy was an illegal exercise of the government's executive authority.

The Trump administration's efforts to end DACA were blocked by federal courts, including the Supreme Court, which in June 2020 ruled that officials had improperly terminated the policy. The Trump administration subsequently moved to scale back DACA, reducing the validity of work permits and deportation protections from two years to one year and continuing a ban on first-time applications. 

But a federal court in New York in December 2020 found that acting Homeland Security Secretary Chad Wolf had been improperly appointed and thus lacked the authority to reconfigure DACA. The ruling fully restored DACA and reopened the program to new applicants, including immigrant teenagers.

Those Trump-era legal victories for DACA recipients, however, did not affirm the program's legality. That question was presented to a federal judge in Texas by a group of Republican-led states who argued the Obama administration did not have the legal authority to create it. 

In July 2021, U.S. District Court Judge Andrew Hanen agreed with Texas and eight other Republican-controlled states, saying DACA had been improperly enacted and that it violated federal immigration law. Hanen ordered the Biden administration to close DACA to new applicants, but paused part of his ruling to allow current recipients to renew their work permits and deportation protections.

The Biden administration appealed Hanen's ruling to the 5th Circuit Court of Appeals, which set a hearing in the case for July 6. Winning the appeal, however, will be an uphill battle for the Biden administration.

The conservative-leaning 5th Circuit has ruled against several Biden administration immigration decisions, including its attempt to end a Trump policy that requires migrants to wait in Mexico as their asylum claims are reviewed. In 2015, the court ruled against a DACA-like program the Obama administration tried to set up for unauthorized immigrants whose children were U.S. citizens or green card holders.

Napolitano, the former homeland security secretary, rejected the argument that the program is unlawful, saying the Obama administration sought advice from the Justice Department to confirm the policy was on firm legal footing. But she conceded federal courts may not agree.

"The 5th Circuit has been pretty hostile to immigration rights," Napolitano said.

If the 5th Circuit upholds Hanen's ruling, the partial pause on his ruling that has allowed DACA renewals to continue could be lifted, forcing the Biden administration to shut down the program in its entirety. The case would also likely reach the Supreme Court and its supermajority of Republican-appointed justices.

The Biden administration last year published a proposal to codify DACA into a regulation and address the argument that the policy was improperly enacted because it was not subject to public comments. But the rule, which the Department of Homeland Security said it will finalize in the "coming months," is unlikely to mitigate the argument that DACA itself is unlawful.  

"This administration will continue to fight to protect the DACA program, and we will continue to advocate for legislation that is the enduring and permanent solution for such deserving young people," Homeland Security Secretary Alejandro Mayorkas said in a statement to CBS News.

While DACA's demise could inject some urgency into negotiations in Congress, it remains unclear whether lawmakers could forge a compromise amid intense partisanship over other immigration issues, including U.S policy along the southern border, which has seen record levels of unlawful migration in the past year.

Senior congressional officials said there could be political space for a compromise to legalize DACA beneficiaries, given the bipartisan support the population has. But the officials, who requested anonymity because they were not authorized to speak to the press, said Republicans would likely demand border-related changes, including restrictions on asylum, in exchange for legalizing Dreamers.

"If we want to provide legal status for Dreamers, we must secure our border, so that we don't find ourselves in the same situation again, 20 or 30 years from now," Sen. Chuck Grassley, an Iowa Republican, said during a hearing on DACA's 9th anniversary last summer.

Sen. Bob Menendez, a New Jersey Democrat, said his Republican colleagues have moved to the right on immigration issues since President Donald Trump's election, complicating the prospects of a bipartisan deal. 

"I can't find anybody over there who really is serious about immigration reform, or even helping the DACA recipients," Menendez told CBS News.

Menendez also expressed concern about some members of his party. He said a group of Democratic and GOP senators have been talking about legalizing 200,000 "Documented Dreamers," or children on temporary U.S. visas who could "age out" before their parents' green cards are available, in exchange for asylum restrictions.

"If we are going to significantly change asylum protections, change the standards in a way that undermines asylum, and if we're only going to give a limited universe of Dreamers a benefit as a result of that — not all Dreamers — that's something I can't support," Menendez said, noting he also backs legalizing Documented Dreamers. 

A spokesperson for California Democratic Sen. Alex Padilla, who has been holding the bipartisan talks alongside Sens. Dick Durbin, John Cornyn and Thom Tillis, said the group has been "working through several proposals" that could pass the Senate with 60 votes.

"While there is no formal framework or legislative text that's been agreed to, the conversations have included the need for a pathway to citizenship, border management measures, and fixes to our legal migration system," the spokesperson said, noting that Padilla supports legalizing both Documented Dreamers and Dreamers without legal status.

A spokesperson for Durbin said Menendez's comments on the negotiations were incorrect. "We're not going to publicly comment on the details of ongoing negotiations, but this rumor is completely false," the spokesperson said Wednesday.

Still, DACA's demise could prompt some lawmakers to accept concessions they may not otherwise support.

"Congress only acts when there's a cliff or some immediate danger," one of the congressional aides said. "That's the only scenario where I see broader reforms happening."