President-elect Donald Trump’s get-tough stance against illegal immigration faces a key test on his first day in office: whether to follow through on his campaign trail pledge to revoke President Barack Obama’s 2012 directive that gave undocumented immigrants brought to the United States as children a chance to work here legally without getting deported.
While other aspects of Trump’s immigration platform, such as building a wall along the border with Mexico, will take time to implement, Trump will confront a stark and immediate choice on the program known as Deferred Action for Childhood Arrivals, an executive action Trump vowed to rescind as he campaigned for the presidency.
More than 740,000 so-called Dreamers have work permits under the policy. According to recent data, about 7,000 new applications and 21,000 renewals arrive each month. Trump could shut that process down completely on his first day in office, but if he does nothing, immigration officials will continue to grant and renew permits he has argued are illegal.
If he shutters the program altogether, hundreds of thousands of young people who’ve spent most of their lives in the U.S. could be thrown out of work, with some losing the ability to pay for school.
The post-Inauguration Day policy challenge already has Trump facing pressure and lobbying from both sides in the immigration debate, as hard-liners urge him to scuttle the program altogether while Democrats and some Republicans warn that doing so would be catastrophic for those whose livelihoods and education now depend on the special immigration status.
“We’re trying in a variety of different ways, directly and indirectly, to tell them this would be a disaster for 744,000 DACA recipients and this would be a disaster politically, because of all the friends and family that they have,” Sen. Dick Durbin (D-Ill.), who came up with the concept of DACA in 2010, said in an interview.
But some Trump supporters say they’re expecting Trump to toe the tough line he laid out during his presidential bid and emphatically end the program on Day One.
“He needs to do something immediately to show that he’s serious and when he made his promises, he’s going to keep them,” said Corey Stewart, Trump’s former campaign chairman in Virginia. “One of the best ways to show that determination is to immediately, by executive order, terminate the DACA program.”
Trump was resolute on the campaign trail about revoking Obama’s executive actions, and he will have an array of options regarding DACA. At the most aggressive end, he could abruptly end the program and seek to revoke the work permits received by the hundreds of thousands of DACA beneficiaries. The biggest fear among advocates is that Trump could go even further, using their personal information on file to seek them out for deportation.
A middle-ground option would allow Trump to phase out the program by allowing existing work permits, which are issued for two years at a time, to expire naturally without renewing them — a path recommended by Sen. Marco Rubio (R-Fla.). A variation of this option would be to let the program phase out for a few months, but choose a firm date — for instance, the end of this year — when all the existing work permits would be declared invalid.
Or Trump could leave the program intact for a while, perhaps arguing that he wants to give Congress time to work on legislation that might address the Dreamers, his promise of a border wall, guest worker visas and related immigration issues.
“For people who already have the permits, you wouldn’t take it away from them and they wouldn’t be allowed to renew it, and that gives us time to find a legislative solution,” Rubio said of his preferred method, which would appear to result in more and more permits expiring over time unless Congress acts. “I’m going to wait and see what the White House wants to do.”
Still, some of Trump’s DACA options have their own complications, particularly if he chooses to summarily shut down the program on Day One.
While Trump can simply order the Department of Homeland Security to stop renewing work permits and decline to issue new ones, actually canceling those in the hands of immigrants will require additional effort because federal regulations dictate that process, legal experts said.
According to immigration lawyers, the Trump administration would likely have to revoke each work permit case by case, serving notice on each of the 740,000 beneficiaries and giving them 15 days to submit reasons not to rescind their work authorization.
“That would be such a labor-intensive, expensive process that it is hard for me to imagine they’re going to do it,” said Stephen Legomsky, a former chief counsel at U.S. Citizenship and Immigration Services under Obama.
While Trump — and his choice to lead the Justice Department, Sen. Jeff Sessions (R-Ala.) — declared repeatedly during the campaign that they think Obama’s executive action was illegal, they could argue there is precedent to allow DACA to continue for a while if legislative action appears to be imminent. During the debate over the legality of Obama’s moves, some experts noted that some past executive actions covering large numbers of immigrants involved a kind of bridging action or reprieve that allowed immigrants to stay for a while as Congress worked to address the issue.
While all that is being worked out, Democrats and advocates are devising their own strategy on how to handle immigration in the Trump era. The four Senate Democrats in the “Gang of Eight” three years ago — Dick Durbin of Illinois, Chuck Schumer of New York, Robert Menendez of New Jersey and Michael Bennet of Colorado — huddled last week to begin discussions about how to do that, including ways to protect DACA beneficiaries, aides said.
Durbin said he personally hasn’t been in direct contact with the incoming administration, but the Obama White House has, at least to raise the topic.
Since Trump’s election, key Democratic lawmakers and immigration advocates have been urging the Obama administration to do what it can to protect the Dreamers who’ve been granted a reprieve from deportation and work permits. But realistically, Obama has very few options to protect his signature immigration achievement.
“We’ve explored every aspect and every possibility,” Durbin said. “We haven’t come up with an answer.”
The applications for DACA say the personal information that applicants provided won’t be used to deport them, although the Trump administration could choose to ignore that guidance. Still, the new administration would be likely to face legal challenges if it sought to do so, experts said.
New York Mayor Bill de Blasio has contemplated simply scrubbing a database with personal information of immigrants in the city illegally who have obtained a municipal identification card. But immigration experts who’ve looked into the issue said that, at least on the federal level, wiping away the personal data of DACA recipients would not be legal.
Menendez — whose staff, like Durbin’s, has been looking into how to safeguard DACA beneficiaries — suggested that the outgoing administration write memos or issue other statements that would lay out legal precedents the Trump administration would have to fight if they wanted to use the personal data to deport Dreamers.
“Give these people at least some fighting chance that the information they voluntarily gave won’t be used against them,” Menendez said in an interview. “That’s first and foremost.”
Others, however, dismissed the likelihood that the new Trump administration would launch its deportation agenda by going after Dreamers — traditionally the most sympathetic group of immigrants without legal status.
“Why would you spend time going through a database of telegenic illegal aliens when you’ve got wife beaters and drunk drivers to deport?” said Mark Krikorian, executive director of the Center for Immigration Studies, which favors more restrictive immigration laws. “Purely as a matter of PR, it’s hilariously improbable to do that.”
House Democrats, including Reps. Luis Gutiérrez of Illinois and Zoe Lofgren of California, have urged Obama to use his pardon power on the 740,000 Dreamers, although the White House has ruled out that option. Durbin also disagreed that pardoning Dreamers would be feasible, noting that the pardon power has traditionally been used for criminal offenses, and being in the country illegally is a civil violation.
A group of senators, including Durbin and Republican Sens. Lindsey Graham of South Carolina and Jeff Flake of Arizona, are working on legislation to extend the legal protections under DACA should Trump end the program once he assumes office. Those benefits would last until Congress can come up with a more permanent, legislative fix.
“I’ve always wanted to protect the Dreamers, so we’re just trying to see the best way to do” that, Flake said. “My preference would be to work with the administration on legislation that we could then do.”
Some advocates are guardedly optimistic about Trump’s post-election tone. They point out that his recent statements haven’t alluded to mass deportations, while noting his comments from last week about seeking broad legislation on immigration.
On the other hand, immigrant-rights backers are skittish about Trump’s plans to nominate Sessions as attorney general and about Trump’s post-election meeting with Kansas Secretary of State Kris Kobach, who is in the mix for secretary of the Department of Homeland Security.
That’s prompting them to do whatever they can while Obama is in office to shield Dreamers, no matter how futile those efforts may ultimately be.
“The clock is ticking, and there’s not a whole lot they can do that can’t be undone,” said Marielena Hincapié, executive director of the National Immigration Law Center. “But it’s still worth it.”
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