The Domestic and International Legal Implications of DACA

*Sarah is the Director of the International Human Rights Clinic at The John Marshall Law School.

New actions on DACA

The Trump administration announced its intention of ending the Deferred Action for Childhood Arrivals program (DACA) if Congress does not find a permanent solution in six months. This six-month period will end on March 5, unless a permanent solution is reached through the political process. While there are discussions between President Trump and the Democrats about finding a Congressional solution to DACA, questions about protecting undocumented immigrants, and especially DACA recipients, still remains.

What is DACA

DACA was created in June 2012 through executive action under the Obama administration to protect young people who were brought to the United States as children and who did not have permanent immigration status to remain in the United States. This protection was created as a temporary solution that sought to protect 800,000 immigrants who have been raised in the United States and call United States their home.[1] Under DACA, these young people or “Dreamers” are temporarily protected from deportation, receive permission to work, study and obtain a driver’s license. DACA applicants had to be younger than 31 years old as of June 15, 2012, had to arrive in the U.S. before the age of 16 years old, prove that they have lived in the U.S. continuously since June 15, 2007, with no criminal records, must be enrolled in high school (received GED or completed high school), college, or serve in the military.

What does this change represent for the individuals and the country?

Ending DACA means that: (1) No new initial applications are being accepted; (2) if DACA expires before March 6, 2018, renewal is possible; (3) all renewal applications are due to USCIS by October 5, 2017.[2] For most DACA recipients, ending DACA would mean that their lives would be turned upside-down, would render them jobless, without the opportunity of pursuing education, and vulnerable to deportation. “Taking that away is taking everything from us,” said Renata Aldaz, a psychology student from George Mason University. Many others have expressed how they would not be able to attend college, continue to pursue graduate school, or work to support themselves and their families.[3]

Financially, ending DACA could cost employers in the United States nearly $2 billion over two years, since employers would have to immediately fill vacancies filled by DACA recipients. It would also cost the Federal government around $60 billion for the immediate deportations of those enrolled in the program. In the long run, it would have great financial implications by reducing the United States’ economic growth by $280 billion.[4]

Domestic legal claims

Since the announcement to rescind DACA was made, many states have filed complaints challenging the administration’s rescission of DACA. Many of the complaints have argued that rescinding DACA will violate equal protection and due process.

In New York v. Trump, a complaint filed by fifteen states and the District of Columbia argued that rescinding DACA represents an unlawful discrimination based on race, color, or national origin. [5] The complaint argues that this policy “is part of a history of international discrimination against Latinos/Hispanics by the State of Texas.”[6] The complaint further argues that the policy will have an incredible impact for its recipients by separating them from their citizen family members and threaten their financial and housing security. [7] It further states that the policy will also impact employers by removing valuable members of their work force, enrolled students from education institutions, States, which will feel the severe impact of lost taxes and other contributions.[8]

In California v. Department of Homeland Security, another complaint filed in reaction to the rescission of DACA, the arguments were made that the “rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and further their education.”[9]

International legal claims

In addition to equal protection and due process claims, international human rights law offers a host of additional protections for DACA recipients. Under international human rights law, DACA recipients, as any person with or without immigration status has the right to be free from cruel, inhuman, and degrading treatment as well as have their fundamental right to family protected.

Under the Convention Against Torture, all persons are protected from “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted…for any reason based on discrimination of any kind.”[10] The lifting of protections that DACA recipients will face will render them vulnerable to a cruel, degrading, and an unjust immigration system that allows for the detention and removal of persons who have more ties to the United States than their countries of origins, and that permits their detention in degrading and cruel conditions. Being returned to their countries of origins, will mean that many will be uprooted from the only life that they know, will be subjected to dangers in their home countries, ranging from systemic violence, extreme poverty, and vulnerability for their gender-identity or sexual orientation. Rescinding DACA is in violation of the United States’ duty to take effective legislative, administrative, judicial, or other measures to prevent acts of torture or other cruel, inhuman or degrading treatment or punishment, under Articles 2 and 16 of the CAT.[11]

In addition, the right to family is protected as a fundamental and is considered a non-derogable right.[12] Non-derogable rights are considered so important that States must not violate them or suspend them. The right to a family is protected under the Universal Declaration of Human Rights,[13] the International Covenant on Civil and Political Rights,[14] International Covenant on Economic, Social and Cultural Rights,[15] and the American Convention on Human Rights, among others.[16]  Under this protection, no person may be subjected to arbitrary or abusive interferences with his or her “private life, his family, or his home.”[17]

The separation of an individual from his or her spouse, or children based solely on immigration status may constitute an arbitrary or abusive interference and a violation of the right to family.[18]

“A governmental decision to deprive a person of connection to the place he or she considers home raises serious human rights concerns, requiring at a minimum that the decision to deport be carefully considered, with all relevant impacts and potential rights violations weighed by an independent decision maker.”[19] The separation of DACA recipients and their family members may constitute “cruel, inhuman, or degrading treatment” and should be given careful consideration as to avoid the potential harms that these individuals may suffer as a result of their deportation.

The administration’s decision to rescind DACA has serious legal implications domestically for violations of equal protection and due process, and internationally for violations of the right of family and to be free from cruel, degrading and inhuman treatment. As a community of advocates, we must challenge these policies and seek to protect the rights of those who are most vulnerable.

[1]Requests by Intake, Blometrics and Cases Status, U.S. Citizenship and Immigration Services,  www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2017_qtr2.pdf (last visited Sept. 22, 2017).

[2]Renew Your DACA, U.S. Citizenship and Immigration Services, www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/renew-your-daca (last visited Sept. 22, 2017); Deferred Action for Childhood Arrivals, Rescission Announcement: What it means, U.S. Citizenship and Immigration Services, www.uscis.gov/sites/default/files/USCIS/Humanitarian/Deferred%20Action%20for%20Childhood%20Arrivals/DACA_Rescission_0917_612x792_V18.pdf (last visited Sept. 22, 2017).

[3] Maria Sacchetti, Their lives were transformed by DACA. Here’s what will happen if it disappears, The Washington Post, www.washingtonpost.com/local/immigration/their-lives-were-transformed-by-daca-heres-what-will-happen-if-it-disappears/2017/09/04/a1a34574-8e75-11e7-91d5-ab4e4bb76a3a_story.html?utm_term=.bb925b7a939f (Sept. 4, 2017).

[4] Julia Horowitz, Trump’s DACA decision could cost thousands of jobs, study says, CNN Money, http://money.cnn.com/2017/08/29/news/economy/daca-job-losses-study/index.html (Aug. 30, 2017).

[5] Compl. For Decl. and Inj. Relief, New York v. Trump, (E.D.N.Y. 9/06/17) (17-cv-5228),  available at https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al_-_17cv5228.pdf.

[6] Id. at p. 49,

[7] Id.at p. 7

[8] Id. at p. 5, 6, 20, 25.

[9] Compl. For Decl. and Inj. Relief, California v. Department of Homeland Security, p. 35 (N.D. Cal 9/11/17) (3:17-cv-05235-MEJ)

[10] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, United Nations Human Rights, Art.1 (1984).

[11] Sarah Dávila-Ruhaak, Steven D. Schwinn, Jennifer Chan, Joint Submission to The U.N. Committee Against Torture Concerning the United States’ Mistreatment of Immigrant Detainees in Violation Of The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment In Relation To the United States 5th Periodic Report On the Convention Against Torture, Center and Clinical White Papers (2014), citing, U.N Convention Against Torture at Art. 2(1), 16.

[12] “Pact of San Jose”, American Convention on Human Rights, Costa Rica, (November 22, 1969) available at: https://www.oas.org/dil/treaties_B

[13] General Assembly of the United Nations, Universal Declaration of Human Rights, Art. 12, 16, (1948) available at http://www.un.org/en/universal-declaration-human-rights/.

[14] General Assembly of the United Nations, International Covenant on Civil and Political Rights, Art. 17, 23, (1966) available at https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.

[15] General Assembly of the United Nations, International Covenant on Economic, Social and Cultural Rights, Art. 10

[16] Organization of American States, American Convention On Human Rights, Art. 11 (1969), available at http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdf

[17] Organization of American States, American Convention On Human Rights, Art. 11.2 (1969), available at http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdf

[18] I/A Court H.R., Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 265; Ana Teresa Yarce Et Al. Comuna, Colombia November 2013; Report No. 75/12 Cases 12,577, 12,646, 12,647, 12,667

[19] Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, Human Rights Watch, Vol. 19, No. 3(G), (2007).