It depends on how one defines “keep.” Donald Trump argued against Barack Obama’s unilateral actions on immigration, including the DAPA and expanded DACA programs, both of which got put into limbo by federal courts. When asked in last week’s press conference about DACA and the so-called “dreamers” — children brought into the country illegally by their parents — Trump replied that his immigration policy would show “great heart” in those cases. Today, CBS reports that Trump’s new immigration policy keeps DACA in place.
Or perhaps better put, it doesn’t explicitly eliminate it:
— CBS News (@CBSNews) February 21, 2017
A source with knowledge of DHS planning said the documents are being finalized by the White House and could be released as early as Monday. It was originally scheduled to be released late last week.
One provision would direct the immediate return of Mexican immigrants who are apprehended along the border back home, pending the outcomes of their deportation hearings. The new procedures would allow for authorities to seek expedited deportation hearings.
The memos do not overturn the Obama 2012 immigration action that created the Deferred Action for Childhood Arrivals (DACA) program. DACA has deferred deportations for people who came to the U.S. illegally as children and has provided work permits to more than 750,000 immigrants.
The plan also attempts to deter the arrival of unaccompanied children who have come over the border to the U.S. from Mexico and Central America over the last three years. Under the new policies, their parents could be prosecuted if they are found to have paid smugglers to bring the children across the border.
Before we get to DACA, CBS notes that the Trump administration plans a tougher crackdown on illegal immigrants in ICE raids. Under Obama, ICE targeted only the worst cases where suspected gang leaders had entered illegally. The new policy will get much tougher:
The new procedures would allow authorities to seek expedited deportation proceedings, currently limited to undocumented immigrants who have been in the country for two weeks or less, to anyone who has been in the country for up to two years.
Another new provision would be to immediately return Mexican immigrants who are apprehended at the border back home pending the outcomes of their deportation hearings, rather than house them on U.S. property, an effort that would save detention space and other resources.
The guidelines also aim to deter the arrival of a growing wave of 155,000 unaccompanied minors who have come from Mexico and Central America over the past three years. Under the new policies, their parents in the United States could be prosecuted if they are found to have paid smugglers to bring the children across the border.
The new rules also expand the targets for deportation from just the worst offenders — the Obama policy — to any illegal immigrant who has broken other laws while in the US. That policy has already gone into effect, as seen from news reports over the past two weeks, and is patterned after the “broken windows” method of law enforcement used by Rudy Giuliani in New York City.
As for DACA, Trump’s order does not eliminate it. However, the LA Times’ Brian Bennett and Michael Memoli reported last week that Trump has a way to end it without getting his fingerprints on the axe:
But senior Trump aides are holding fast to their goal of strengthening immigration enforcement, the president’s chief campaign promise. They have examined at least two options that would not directly involve Trump, according to two immigration policy advisors to the White House: a lawsuit brought by states, and new legal guidance that details who is a priority for deportation.
Under that option, Atty. Gen. Jeff Sessions, a vocal critic of deportation relief as a senator, would direct Department of Justice lawyers to review the program, which issues two-year work permits to people who qualify and keeps them from being categorized as deportation priorities.
If the Justice Department determines that DACA is not legal or is no longer a responsible use of prosecutorial discretion, the Department of Homeland Security would be instructed to stop awarding and renewing work permits.
Another possible path involves the courts. A handful of governors are considering a challenge patterned on the 2014 lawsuit filed by several conservative state officials against the Obama administration’s expansion of deportation protections. If they sue, Sessions could instruct his lawyers not to defend the program in court, exposing it to indefinite suspension by a federal judge.
It could be even simpler than either of those two options, thanks to the precedent set by the Obama administration:
Deportation relief could also be ended “the same way it was begun,” said Kris Kobach, the Kansas secretary of state and the architect of multiple state and local laws aimed at immigrants in the U.S. illegally. Homeland Security Secretary John Kelly could simply instruct U.S. Citizenship and Immigration Services to stop issuing work permits, much as Obama’s first secretary of Homeland Security, Janet Napolitano, created DACA with a memo in 2012.
If Trump really doesn’t want to end DACA, then none of these will ever come into play. If Trump wants DACA ended but without his fingerprints on the axe, then the only real option is to get states to sue in federal court. That’s tricky, too, because a Sessions decision not to defend the program will look as though Trump at least implicitly endorses that approach — and it might not be enough to get a favorable ruling. Other states and outside organizations would flood the court with amicus briefs, and a judge might wonder why the administration chose to default rather than just use the authority they already have on their own to end the program.
One other possibility exists, too. Not long ago, the Trump administration was reported to favor a bipartisan, comprehensive immigration reform package that would finally resolve all issues. If they want to drive Democrats into a bargain, they might use DACA as leverage, which means that they’d need to keep it alive for a little while longer. After four years of Democratic lectures about the “dreamers,” it might be the biggest chip the White House has to get the kind of deal they want. Since they can cancel the program at any time, there’s not much risk in letting it operate for a while longer to see how much that leverage buys them.