The White House is preparing to take executive action to protect hundreds of thousands of immigrants known as “Dreamers”, people close to the White House have told NBC News, as the Biden administration prepares to a potential defeat in court that could end the decade-old Decade. Action Program for Childhood Arrivals.
Planning has intensified in recent days ahead of a decision on the future of the program from the 5th U.S. Circuit Court of Appeals, possibly within days. At stake is the ability of more than 600,000 people protected by the program, known as DACA, to continue living and working in the United States without fear of deportation. The conservative panel of judges is almost certain to rule that DACA is illegal. Although the Biden administration is likely to appeal the order, the Supreme Court has indicated it would agree with a 5th Circuit ruling that ends the Obama-era program.
With few options to act on its own, the Biden administration is preparing measures that could continue to protect from deportation – at least temporarily – immigrants who were brought to the United States as children but never do not have legal status and have obtained protections under the DACA program.
The order would direct Immigration and Customs Enforcement to prioritize the deportation of DACA recipients and to refrain from deporting them if they are not deemed a threat to public safety or security. national.
But the order could easily be overturned by another administration. When the Supreme Court ruled in 2020 to block the Trump administration from ending DACA, the majority opinion, written by Chief Justice John Roberts, said the Trump administration ended the program in the wrong way. meaning. Legal experts believe the now more conservative court will eventually rule that DACA itself is illegal, not least because it allows work authorization for undocumented migrants.
Without congressional action, the program’s work permits are almost certain to end. Immigration experts say thousands could suddenly lose their ability to earn a living in the United States
“DACA has been threatened in the past, but the current case in the 5th Circuit Court is the most serious threat to date,” said Todd Schulte, president and executive director of FWD.US, a bipartisan political advocacy organization. for immigration reform progress. “If Congress does not pass legislation this year, it is likely that nearly 700,000 DACA recipients could be forced out of their jobs and face deportation. If the 5th Circuit rules against the DACA, 1,000 existing DACA recipients risk losing their legal ability to work every working day for the next 24 months.
Planning for a possible court defeat echoes a strategy the administration tried to use after the Supreme Court overturned Roe v. Wade three months ago. After that decision, President Joe Biden signed an executive order and federal agencies took action to try to preserve access to abortion wherever possible, although some abortion rights activists still criticized the White House for appearing unprepared.
In the DACA case, a disappointing decision for supporters seems more likely than not, immigration advocates said. Not only has the 5th Circuit already ruled unfavorably on the Biden administration’s position in a related case, but any ruling is also likely to be appealed to the Supreme Court, where the conservative majority is expected to rule against it. the DACA.
The Biden White House has repeatedly urged lawmakers to act to protect DACA recipients, who are commonly referred to as “Dreamers” based on never-passed congressional proposals called the DREAM Act, and to revise DACA laws more broadly. immigration, but there is no sign that Congress will seriously address the issue in the near future.
Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said Tuesday that he recently spoke to Homeland Security Secretary Alejandro Mayorkas about the upcoming DACA ruling. He did not say what Congress was prepared to do if DACA was terminated.
“I think there is strong national sentiment in favor of ‘Dreamers’ and DACA recipients. And if something terrible comes out of the 5th Circuit, I think it could be a problem in November,” Durbin said, referring to November’s midterm elections.
Sen. Kyrsten Sinema, D-Arizona, who has often opposed her party on key legislative proposals, said she would like to focus on immigration reform after the November election.
“The reality is that we have to meet both our security needs and our manpower needs,” she said in a speech Monday at the McConnell Center. Referring to Sen. John Cornyn, R-Texas, she added, “And hopefully I can partner with my friend John and deliver something in the next few months or a few years.”
In 2021, Sinema and Cornyn had jointly unveiled a bipartisan immigration bill responding to the influx of migrants at the border.
Similarly frustrated with immigration inaction in Congress, former President Barack Obama created the DACA program in 2012 through executive action to protect people who were brought to the United States without citizenship or residency as ‘children. The program has been the subject of intense legal battles since, leaving participants in a near-constant state of limbo.
Since last year, the program has been closed to new applicants after a court ruling said DACA was illegal but continued to protect existing beneficiaries while the case was in court.
This year, the Biden administration issued new regulations to bolster DACA’s legal underpinnings and improve its prospects of survival in court, though it’s unclear whether that will be enough to save the program.
A White House spokesperson did not respond to requests for comment.
Julie Tsirkin and Frank Thorp V contributed.