The Supreme Court’s conservative majority signaled support on Tuesday for President Donald Trump’s bid to kill a program that protects hundreds of thousands of immigrants – dubbed “Dreamers” – who entered the United States illegally as children, even as liberal justices complained that the move would destroy lives.
The court’s ideological divisions were on full display as it heard the administration’s appeal of lower court rulings that blocked the Republican president’s 2017 plan to rescind the Deferred Action for Childhood Arrivals (DACA) program, created in 2012 by his Democratic predecessor Barack Obama.
DACA currently shields about 660,000 immigrants – mostly Hispanic young adults – from deportation and provides them work permits, though not a path to citizenship. Trump’s bid to end it is part of his hardline immigration polices.
Conservative justices questioned whether courts even have the power to review Trump’s action and also seemed to reject the views of lower courts that his administration had failed to properly justify ending DACA, a program Obama implemented after Congress failed to pass bipartisan immigration reform.
The court’s 5-4 conservative majority includes two Trump appointees – Neil Gorsuch and Brett Kavanaugh – who both indicated support for the president’s action.
Liberal justices emphasized the large number of individuals, businesses and others who have relied on the program and indicated that the administration did not sufficiently weigh those concerns. Justice Sonia Sotomayor referred to Trump’s decision as a “choice to destroy lives” and indicated that his administration had failed to supply the required policy rationale to make the move lawful.
Kavanaugh said he assumed that the administration’s analysis of the impact rescinding DACA would have on individuals was a “very considered decision.”
“I mean, this is a serious decision. We all agree on that,” Kavanaugh added.
A ruling is due by the end of June.
Trump’s administration has argued that Obama exceeded his constitutional powers when he created DACA by executive action, bypassing Congress. Trump has made his hardline immigration policies – cracking down on legal and illegal immigration and pursuing construction of a wall along the U.S.-Mexican border – a centerpiece of his presidency and 2020 re-election campaign.
The challengers who sued to stop Trump’s action included a collection of states such as California and New York, people currently protected by the program and civil rights groups.
Even if Trump were to lose this time, his administration would be free to come up with new reasons to end the program in the future, a point picked up by Gorsuch.
“What good would another five years of litigation over the adequacy of that explanation serve?” Gorsuch asked.
Conservative Chief Justice John Roberts, who could be the pivotal vote in deciding the case, likewise indicated he was satisfied with the administration’s rationale.
Roberts, however, had appeared sympathetic to Trump in a case this year on the administration’s attempt to add a contentious citizenship question to the 2020 census – a move critics said was intended to deter immigrants from being included in the nation’s official population count. Roberts cast the decisive vote against the president in a 5-4 ruling.
TRAVEL BAN
The Supreme Court previously handed Trump a major victory on immigration policy last year when it upheld as lawful his travel ban blocking people from several Muslim-majority countries from entering the United States, finding that the president has broad discretion to set such policy.
Lower court rulings in California, New York and the District of Columbia left DACA in place, finding that Trump’s move to rescind it was likely “arbitrary and capricious” and violated a U.S. law called the Administrative Procedure Act.
The young people protected under DACA, Obama said, were raised and educated in the United States, grew up as Americans and often know little about their countries of origin.
Sotomayor, the first Hispanic Supreme Court justice, wondered if the court should take into account the fact that Trump has said he would look after “Dreamers.”
“He hasn’t” taken care of them, she said. “And that, I think, is something to be considered before you rescind a policy.”
Much of the administration’s reasoning was based on then-Attorney General Jeff Sessions’ conclusion in 2017 that the program was unlawful. Liberal Justice Ruth Bader Ginsburg pressed U.S. Solicitor General Noel Francisco, who argued the case for the administration, on the government’s reliance on the assertion that DACA was unlawful.
The administration could have just said “we don’t like DACA and we’re taking responsibility for that instead of trying to put the blame on the law,” Ginsburg said.
Francisco, who also argued the travel ban case, said the administration was not trying to shirk responsibility for ending a popular program.
“We own this,” Francisco said, referring to Trump’s decision to kill DACA.
Trump has given mixed messages about the “Dreamers,” saying in 2017 that he has “a great love” for them even as he sought to kill the program that protected them from deportation.
Trump on Tuesday took to Twitter to attack “many” DACA recipients as “tough, hardened criminals,” without offering evidence, and again dangled the possibility of a deal with congressional Democrats to allow people protected under the program to remain in the United States. Trump has never proposed a detailed replacement for DACA.
Several hundred DACA supporters gathered outside the court on a gray and chilly Tuesday morning, chanting, banging drums and carrying signs that read “home is here” and “defend DACA.”
Implications for ongoing flows across the Canada US border:
The U.S. Senate isn’t seriously considering a path to permanent residency or citizenship for more than 300,000 Temporary Protected Status recipients as part of an immigration deal to keep 689,000 Dreamers from being deported.
Two senators involved in ongoing immigration talks, Florida Democrat Bill Nelson and Arizona Republican Jeff Flake, said there aren’t active serious discussions about the fate of TPS holders from Haiti, El Salvador, Nicaragua and Honduras.
“The bipartisan group is trying to get some consensus of what can pass that will protect the DACA Dreamers,” Nelson said. “What I expect is within two weeks we are going to get a DACA solution. I would hope it includes TPS, but if it messes up getting votes in order to pass the Dreamers, I think that would not be considered then and would be held for more comprehensive immigration.”
Flake said a proposal did exist at one point to take some visas from the diversity lottery and apply them to TPS recipients. But the idea, part of an immigration proposal by Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., was rejected by President Donald Trump.
TPS has been discussed at recent Senate immigration meetings, according to Flake, but the topic isn’t under serious consideration as Senate Democrats and Republicans try to negotiate an immigration proposal that will receive 60 votes in the upper chamber, along with the approval of the GOP-controlled House of Representatives and Trump.
“It’s been discussed but nothing firm,” Flake said, adding there’s “no serious discussion” about TPS.
The Senate stance on TPS comes after Trump reportedly blasted TPS recipients in a White House meeting, saying, “Why do we need more Haitians? Take them out,” and “Why are we having all these people from shithole countries come here?” — in reference to immigrants living and working legally in the United States under TPS and to making changes to the diversity lottery system.
Several senators, including Florida Republican Marco Rubio, have said in recent weeks that any immigration bill should focus on finding a solution for DACA recipients in exchange for stronger border security measures, though Trump has said he wants to end the diversity lottery and cut legal immigration as part of any deal to give DACA recipients and DACA-eligible unauthorized immigrants a path to citizenship. Trump’s proposal is a non-starter for most Democrats.
“Legal status for those currently in DACA & stronger Border Security has overwhelming support & is ideal starting point for Senate debate,” Rubio tweeted on Tuesday.
South Florida is home to the nation’s largest concentration of Haitians, along with a sizable number of Salvadorans, Hondurans and Nicaraguans.
Nelson said “you have to create a different kind of category” for current TPS recipients, because a mass exodus of 60,000 Haitians from the U.S. would have ripple effects on the economies of both South Florida and Haiti. Multiple bills that would provide a path to permanent residency or citizenship for some or all TPS recipients have been proposed in the House of Representatives, but a vote on any TPS bill isn’t imminent.
“In solving immigration problems you really have to also solve what are you doing with TPS because … there’s going to be cases where, for example Haiti, you can’t return 60,000 people all at once to Haiti,” Nelson said. “The economy of Haiti could not swallow that, but that’s more for immigration reform.”
Miami Republican Rep. Ileana Ros-Lehtinen has signed on to multiple bills that would give TPS recipients a path to permanent citizenship and complained that most members of Congress were unaware of the issue. On Wednesday she said there would be more of an appetite to find a solution for TPS recipients if DACA recipients and DACA-eligible immigrants had already been protected from deportation by Congress.
“There just isn’t room in people’s hearts right now,” Ros-Lehtinen said.
Senate Majority Leader Mitch McConnell said last month he would agree to debate and vote on an immigration bill in the Senate, though he didn’t agree on a specific proposal. House Minority Leader Nancy Pelosi gave a lengthy speech on Wednesday opposing a massive budget deal that would keep the government open because “the package does nothing to advance bipartisan legislation to protect Dreamers.”
The Department of Homeland Security canceled TPS for Haiti, El Salvador and Nicaragua in recent months and extended Honduras’ TPS designation until July in order to formulate a final decision. Nearly 60,000 Haitians, 200,000 Salvadorans, 2,500 Nicaraguans and potentially 57,000 Hondurans could be forced to leave the country in 2019 unless Congress passes legislation.
“I think that we really have to knuckle down and bring our nation into a 21st century immigration system. It’s ridiculous the way we are operating right now,” said Rep. Yvette Clarke, D-N.Y., who has also proposed multiple bills to prevent TPS recipients from being deported.
“The lack of compassion, the demonization of immigrants, it’s not healthy for our country.”
Canadians shouldn’t expect another flood of asylum seekers to illegally cross the border in the wake of the Trump administration’s decision to scrap a program designed to protect young, undocumented immigrants in the United States, immigration experts say.
The situation of the roughly 800,000 so-called Dreamers, undocumented immigrants who were brought to the U.S. as children, is very different from that of the Haitians and other asylum seekers who’ve been coming to Canada in large numbers via irregular border crossings, said Ottawa immigration lawyer Ronalee Carey.
For one thing, it’s still unclear whether the Dreamers will actually face deportation from the U.S. once the Deferred Action for Childhood Arrivals (DACA) program ends six months from now.
“If I was a DACA recipient, I would not be trying to come to Canada irregularly,” Carey said. “I think they should sit tight and wait and see what happens.”
U.S. President Donald Trump has given Congress six months to come up with a solution for the Dreamers, so-called because of the proposed DREAM Act, voted down in the Senate in 2010, which would have offered them legal status in exchange for joining the military or attending college. DACA is a stopgap measure, implemented by the Obama administration, that has shielded the Dreamers from deportation but has not given them a path to citizenship.
On Tuesday evening, Trump tweeted that he will “revisit this issue” if Congress is unable to “legalize DACA” in the next six months. A majority of Americans believe Dreamers, many of whom have grown up speaking English and have attended American universities, should be allowed to stay in the U.S.
Carey said it would be a “huge mess” if the Trump administration actually tried to deport the 800,000 undocumented young people.
“That was a smart tweet on his part to sort of take back a little bit,” she said.
If some DACA recipients do head north, they will be very unlikely to meet the criteria for refugee status in Canada, she said. But some could come to Canada through normal immigration streams, like the Express Entry program for skilled workers, which would give them a path to permanent residence. Others could come as international students if they have the money, Carey said. In fact, at least one Canadian post-secondary institution is already trying to capitalize on the opportunity. Huron University College, in London, Ont., announced Wednesday it will be offering a $50,000 scholarship for students affected by the DACA decision.
Even if some Dreamers do decide to brave the odds and seek refugee status in Canada, most wouldn’t need to cross the border illegally to do so, she said, because of an exception in the Safe Third Country Agreement. Most would-be refugees who try to enter Canada from the U.S. can be turned away at official border crossings and told to make their asylum claims in the U.S., which is why so many have been coming into Canada at unauthorized points. But Mexicans, who account for about 70 per cent of DACA recipients, are exempted from this rule because they don’t need a visa to come to Canada. They can claim asylum at any border checkpoint, Carey said.
Independent Senator Ratna Omidvar said she has spoken to a number of Dreamers in recent days, and they seem less inclined to seek asylum in Canada than to look at immigrating through other channels.
“That was the least attractive to them,” she said. “They see themselves in a different way.”
Still, Omidvar said Canada should look at taking in 10,000 to 30,000 DACA recipients over the next several years, though she doesn’t believe the government needs to create a special program for them. She compared the Dreamers to the draft dodgers who came to Canada in the 1960s to escape the Vietnam War.
“I feel that Canadians have a huge amount of empathy and compassion, but their empathy for young people is always louder,” she said.
Irene Bloemraad, a sociology professor at the University of California Berkeley who specializes in immigration, said she doesn’t expect floods of Dreamers to make their way to Canada immediately, but it could be an appealing prospect if Congress fails to come up with a solution in the coming months.
“I don’t think there’s going to be hundreds of thousands of people coming north,” she said. “But I think there’s going to be interest.”
She believes Canada should create a special provision to fast-track DACA recipients who want to come north as skilled workers, students or asylum seekers. What Canadians dislike, she said, “is when you have unanticipated numbers of people crossing the borders and then claiming asylum. … But when those flows can be structured in a way, then I think Canadians are very, very generous.”
The issue has come up at a sensitive time for the Canadian government, with NAFTA negotiations underway between Canada, the U.S. and Mexico. Asked about a potential influx of Dreamers to Canada, Hursh Jaswal, spokesperson for Immigration Minister Ahmed Hussen, said the government “won’t speculate on any possible future trends.”
But Bloemraad said Canada needs to look ahead. “Even if the Canadian government is worried about how being proactive with regards to the DACA recipients might have complications for NAFTA negotiations, the alternative, not doing anything, is going to create much bigger policy problems down the road.”
Andy Semotiuk, a Canadian and U.S. immigration lawyer, said Canada has other immigration hurdles to face beyond the DACA recipients. He pointed to the 260,000 Salvadorans and 86,000 Hondurans whose temporary protected status in the U.S. is set to expire, saying the trend of illegal migration to Canada could become “overwhelming.”
Liberal MP Pablo Rodriguez is set to go to Los Angeles this week to try and head off that possible next wave of migrants by correcting misinformation about Canada’s immigration system.
Good advocacy piece by Senator Omidvar and Irene Bloemraad of University of California:
The U.S. public is sympathetic to their plight. Most Americans favour legalizing undocumented residents. Multiple attempts have been made to pass a DREAM (Development, Relief and Education for Alien Minors) Act that would open a road to citizenship. But Congress has repeatedly failed to pass the bill, leaving only the coinage of “dreamers” to refer to those it would have helped. There is no chance of new DREAM Act legislation in the near future.
As a stopgap measure, the administration of former president Barack Obama introduced the Deferred Action for Childhood Arrivals (DACA) program. Under DACA, undocumented young people received work authorization for two years and were shielded from deportation. The program was open to those who arrived in the United States before the age of 16, had no police record, were in high school, had graduated from high school, or had been honourably discharged from the U.S. military. To date, about 750,000 people have become “DACAmented.”
These are precisely the people who Canada looks for in its immigration program. The economic advisory council to Prime Minister Justin Trudeau recommended Canada focus a growing immigration strategy on business talent and international students. The DACA kids are young, with a lifetime of economic contribution in front of them. They are fluent in English, went to U.S. schools, have North American work experience – often in companies that can be found on either side of the Canada-U.S. border – and some have university degrees. To get DACA status, they had to be screened for security threats and criminal background, making them a pre-vetted group.
These young people hold incredible promise for Canada. They are exceptional people. It is not easy to go to college or university when you are undocumented. But within the flagship University of California public system, hundreds of dreamers are pursing higher education in degrees ranging from math to sociology.
In 2014, Sergio Garcia became the first undocumented lawyer certified to the California bar. That same year, Jirayut Latthivongskorn became the first undocumented medical student enrolled in the University of California, San Francisco. For each of these dramatic against-all-odds success stories, there are thousands of other ordinary immigrant kids who just want the security of citizenship, a good job and a stable home.
Unfortunately, their American dreams have never appeared more remote. Mr. Trump campaigned on an explicit “America First” message. Since taking office, he has advanced plans to build a wall on the U.S.-Mexico border and sought to temporarily halt refugee admissions. The White House has not yet made an explicit statement on the DACA program but, at best, the program will end. At worst, the government will use the information collected from those who applied to begin mass deportations.
Canada is already seeing the arrival of asylum seekers from the United States. If DACA is ended, a flood of new arrivals is possible. Canada cannot take all of these young people, but a targeted program of 10,000-30,000 would allow Canada to select the very best matches with Canadian society and the economy.
As immigrants to Canada, they could be a special addition to economic-stream migrants, or fall under a new program akin to that for international university students.
Offering a Canadian dream to DACA recipients might also be positive for foreign relations. Mr. Trump faces a problem in how to deal with the country’s undocumented population. Deporting millions would be politically, logistically and socially impossible, but rendering their lives difficult is a distinct possibility.
Canada has long benefited from the flow of people educated and raised in the United States, who left for a variety of reasons. Today, the United States is among the top-10 source countries of permanent residents. Looking further back, an estimated 40,000 draft dodgers fled conscription during the Vietnam War, representing what the Immigration Department called “the largest, best-educated group this country ever received.” Dreamers could be a close second.
Multicultural Meanderings 