Legal threats loom over Senate hearing on Dreamers

Nine years after DACA's creation, a federal case casts a shadow over the Obama-era program — and the immigrants it protects

A protester holds up a sign during a rally outside of the U.S. Supreme Court in November 2019. (Caroline Brehman/CQ Roll Call file photo)
A protester holds up a sign during a rally outside of the U.S. Supreme Court in November 2019. (Caroline Brehman/CQ Roll Call file photo)
Posted June 14, 2021 at 7:01am

Bruna Sollod went to pick up a new driver’s license earlier this month after moving between states and was confronted with a painful reminder of her tenuous status: an expiration date of early next year, when her current immigration protections expire.

Born in Brazil but raised in Florida, Sollod was in college when she received temporary protections through Deferred Action for Childhood Arrivals, a 2012 Obama-era program that provides deportation relief and work permits to undocumented immigrants brought to the U.S. as children.

Now almost 30, Sollod has lived in the U.S. for 22 years. But DACA, intended as a temporary measure to protect a subset of young undocumented immigrants, remains limited and under legal threat.

“We all have those expiration dates in our mind. How long is this program going to live?” she said in an interview, describing the toll on her and others’ mental health as courts and Congress debate DACA.

Ahead of the nine-year anniversary of DACA’s creation, Senate Democrats are eyeing legislative action to establish a permanent solution for thousands of people, like Sollod, living for years on temporary protections.

On Tuesday, nine years to the day after former President Barack Obama announced the program from the Rose Garden, the Senate Judiciary Committee will hold a hearing on the American Dream and Promise Act.

The legislation, passed by the House in March with some bipartisan support, would provide a pathway to American citizenship for hundreds of thousands of undocumented immigrants who came to the U.S. as children, known as Dreamers, and others with temporary immigration protections.

According to the committee, the hearing “will highlight the need for the Senate to take up the House-passed legislation” and include the testimony of a DACA recipient, now working as a medical resident, and former leaders of U.S. Citizenship and Immigration Services.

“I’m ready, it’s time. America’s ready,” Senate Judiciary Chairman Richard J. Durbin of Illinois said during a news conference Friday at a Chicago high school. “Overwhelmingly, Democrats, Republicans and independents support this idea. They believe it’s fair — it’s fundamentally fair — that these young people should have their chance to be part of America’s future. And we’re going to have this hearing to move in that direction.”

The hearing could force Republicans, many of whom publicly supported legalization for Dreamers, to take a stance on the bill.

“It is an opportunity for the American people to hear from Republicans: Are they for a pathway to citizenship, or are they for a pathway to deportation?” said Sollod, now an activist with United We Dream.

During recent hearings on immigration-related bills, Republican lawmakers focused on rising migration at the southwest border, which could derail efforts to reach bipartisan compromise in other immigration areas.

South Carolina Republican Sen. Lindsey Graham, a member of the Judiciary Committee, co-introduced separate legislation with Durbin to allow certain undocumented immigrants brought to the country as children to become citizens, though his bill is more narrow than the House-passed version, which includes citizenship for more individuals.

Yet even Graham said he wouldn’t vote for his own bill as a stand-alone measure, previewing Republican demands to attach border security provisions.

Sen. John Cornyn, another committee member, could be another Republican to watch Tuesday. Last year while campaigning, the Texas senator ran a Spanish-language ad campaign telling voters he supports legalization for Dreamers.

Cornyn recently demonstrated he can reach across the aisle on immigration. In April, he teamed up with Sen. Kyrsten Sinema, an Arizona Democrat, to introduce bipartisan legislation to address increased levels of migration at the U.S.-Mexico border.

In 2018, Cornyn voted for an amendment to a bill that would provide a path to citizenship for Dreamers while increasing border security funding, which immigrant advocates overwhelmingly opposed.

However, he signaled a willingness to hold up protections for Dreamers over border issues.

On the Senate floor in April, Cornyn said Congress “should take action to give DACA immigrants the stability they deserve,” calling it “a priority on both sides of the aisle.”

“But we’re not ready for those types of conversations until we solve the immediate crisis at the border,” he said.

Litigation looming

As lawmakers trade barbs over the border, a federal court case in Texas on the legality of DACA looms large.

U.S. District Judge Andrew Hanen, who previously ruled against the Obama administration’s attempts to expand DACA, is now considering a request from a group of states to strike down the program entirely.

At a hearing in late March, Hanen indicated that, even if he agreed with the states that DACA was illegal, he would consider giving the Department of Homeland Security a chance to redo the policy rather than terminate the program immediately.

Hanen, who has not responded to government requests for more time, could rule any day now, according to Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund, which is defending DACA alongside the federal government.

The Biden administration is working on a regulation “to preserve and fortify” DACA, aimed for release in August, according to a preview of the upcoming policy in the administration’s regulatory agenda. Subsequent versions of the program, however, could still be vulnerable to new court challenges.

“Legislative action is really the only thing that will remove that continuing threat of termination in some form,” said Saenz.

If DACA is struck down in court, it could press Congress to act, some analysts said.

“That could add a whole new level of emergency to the Senate debate,” said Douglas Rivlin of America’s Voice, a left-leaning, pro-immigration group. “If DACA recipients become deportable, that’s an unsustainable place for either Democrats or Republicans to stand, and the pressure to get something done this year increases a great deal.”

But Rivlin also said he was “not optimistic” that Democrats could convince 10 Senate Republicans, the minimum needed for legislation to move forward, to pass a bill to legalize the undocumented population. Democrats may need to push citizenship measures through the reconciliation process, which allows bills to be passed by majority vote, he said.

Many DACA recipients spent the past four years under the Trump administration fearing they would lose their status, as litigation over an attempt to end the program made its way up to the Supreme Court.

To the relief of DACA recipients nationwide, the high court ruled against the Trump administration, concluding it could not end DACA the way it had tried. But the program remains in jeopardy — and the Texas litigation, a challenge to the program’s core legality, adds another layer of uncertainty to an already shaky status.

“It’s hard for a community to stand on edge for that long,” said Jaclyn Kelley-Widmer, a Cornell Law School professor who represents DACA recipients and applicants as young as 16.

She said the individuals she represents have seemed to fall into two categories when it comes to tracking DACA’s prospects: those who are “at the edge of their seat, nail-biting, stressing over it” and those who now feel “numb.”

Sollod described the uncertainty surrounding the program and court case as a “dark cloud that hovers over everything you do.”

“This has been such a roller coaster these last few years with the program and court case to court case,” she said. “We don’t want to live through the last four years again.”