New DACA Ruling Has Undocumented Immigrants Hopeful Biden Will Expand Program

Undocumented immigrants in New York believe a Brooklyn federal judge’s ruling on Deferred Action for Childhood Arrivals (known as DACA) will expand the Obama-era program that President Donald Trump has spent years trying to undo, just in time for president-elect Joe Biden to issue his own protections for a class of young people known as Dreamers.

Judge Nicholas Garaufis ruled Saturday that the Trump administration’s latest attempt to change DACA wasn’t legal because the man who issued revisions wasn’t lawfully appointed to his job under federal rules of succession.

Garaufis was referring to Acting Homeland Security Secretary Chad Wolf, the second of two officials appointed to the role after the DHS Secretary Kirstjen Nielsen resigned last year. Wolf created a more restrictive version of DACA in late July after the US Supreme Court ruled the Trump Administration illegally ended the program three years ago. DACA was originally created in 2012 by former president Barack Obama to protect undocumented immigrants brought to the U.S. as children.

The weekend ruling was in response to a lawsuit by New York State and the immigrant advocacy group Make the Road New York, which also has several individual plaintiffs seeking to renew or apply for DACA.

“As we look forward to a Biden administration, we know this victory is just the beginning,” said Javier. H. Valdés, co-executive director of Make the Road New York. President-elect Joe Biden has said he will reinstate DACA on Day One after taking office.

The government and the plaintiffs must now meet in court to discuss how to implement the ruling, and the Trump administration could still appeal. The Department of Homeland Security told CBS over the weekend it considers Garaufis an “activist judge.”

But in the meantime, attorneys expect the government will have to accept new DACA applications for the first time since 2017 because the judge granted class certification to the plaintiffs -- affecting everyone with a similar situation.

The decision was considered a win for New York area activists who have been fighting to preserve and expand DACA ever since Obama’s presidency.

“About 650,000 folks hold DACA today,” said Jessica Young, supervising immigration attorney for Make the Road New York. “Our estimate of the total nationwide class of those who hold DACA and those who are eligible to apply [under the original Obama program] is 1.1 million.”

That’s a big deal for so-called Dreamers like 26 year-old Johana Larios, who has been trying to get DACA status for years. “I felt so many emotions...so much was going through my mind,” she said after hearing about the weekend ruling.

Larios, who resides on Staten Island, said she was brought to the U.S. from Mexico when she was almost two years old by her parents. She said she first planned to apply for DACA in 2017, but couldn’t because President Donald Trump ended the program.

When the Supreme Court ruled Trump’s action was illegal in June, Larios jumped at the chance to apply. But she was rejected because Acting Secretary Wolf had revised DACA and wouldn’t accept first-time applicants. She then joined the lawsuit by Make the Road New York.

With Saturday’s ruling, Larios said, “I feel like this time it’s real.” She has two young children, and DACA’s work authorization would allow her to expand her career opportunities -- she used to clean houses before becoming a full-time mom. It will also give her a new sense of security. “I have thought about it so many times,” she explained. “If I were to be deported I’d be going to a country I don’t know.”

The original DACA program allowed two years of renewable protection from deportation and work permits for those who were either brought to the U.S. illegally as children, or whose visas expired when they were young. To be eligible, they had to have lived in the country since 2007, had a clean legal record and met certain education requirements. DACA also allowed them to travel to other countries with permission. Wolf’s version barred new applicants, only allowed one year of protections and prohibited most travel abroad.

Biden hasn’t said what his version of DACA will look like. Janet Calvo, a professor of immigration and citizenship at the City University of New York’s School of Law, said the latest court ruling will bolster his case for DACA. But, she said, “It strengthens his hand and it also imposes limitations on him.”

Calvo explained that while the federal judge in New York, district courts in California and Maryland and the Supreme Court have all sided with the DACA plaintiffs in different rulings, they did so because Trump’s administration didn’t follow federal statutes when it ended or revised the program.

“He’s going to have to look at those decisions and whatever he decides to do has to comport with those decisions,” Calvo said of Biden. “He has to follow the rule of law like Trump has to follow the rule of law.”

Opponents of DACA could also sue the new president, if they believe his actions exceed his executive power; that’s the claim made by Texas, which could be decided soon. The Supreme Court’s decision in June didn’t say whether Obama acted unlawfully when he created the program. Instead, it said Trump acted illegally when he ended it in 2017.

Carlos Vargas, 35, one of the original plaintiffs in the Make the Road New York lawsuit that went all the way to the Supreme Court, calls the last few years an “emotional rollercoaster.” He’s had DACA status since 2012 and said the only way to protect current and future Dreamers is through legislation giving all undocumented immigrants a path to legalization - even though that’s going to be extremely difficult with a divided Congress.

“DACA has always been a temporary program from the beginning,” he said. “With this new administration, I think our message is that we need a permanent solution not just a Band Aid to the problem.”