After the recording of this podcast, President Trump mentioned that he would work with Democrats on DACA and immigration policy. As of today, a potential “DACA deal” with Democrats remains unclear.
Due to the developing nature of this issue, the information in this podcast may be incorrect or outdated though still relevant. Please keep this in mind upon listening.
On September 5th of 2017, President Trump’s administration said they would rescind the Deferred Action for Childhood Arrivals. Back in June of 2012, DACA was put in place by the Obama Administration to protect immigrants without legal status who came to the United States as children. President Trump’s call to end DACA now heads to Congress to find a solution for the population that was previously eligible under the policy. Just this week, the state of California filed a lawsuit against the Trump administration for its decision to rescind DACA.
On Lawyer 2 Lawyer, hosts Bob Ambrogi and Craig Williams join Hans von Spakovsky, senior legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and immigration attorney Erin J. Lee, from the Law Offices of Erin J. Lee, as they take a look at DACA and the DREAM Act, the role of Congress, the reality of deportation and potential impact, future litigation, and what the future holds for DREAMers and their families.
Hans von Spakovsky is a senior legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Erin J. Lee, from the Law Offices of Erin J. Lee is an immigration attorney out of San Diego, California.
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DACA, DREAMers, and the Threat of Deportation
Hans von Spakovsky: If they are going to be given legal status, if they are going to be given amnesty, perhaps in the ability to become citizens, the whole reason that’s being pushed is because people say, well, they weren’t responsible for this. It was their parents who did it.
Erin J. Lee: I think they just deserved the opportunity to excel in a country where they had no choice to be brought to. In fact, a lot of my clients don’t even realize they are in another country, or they are older and their friends are applying for driver’s licenses, and they realized they can apply and they don’t understand why. I think that’s just tragic.
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.
Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from Massachusetts, where I write a blog called LawSites, and also co-host another Legal Talk Network Program called Law Technology Now along with Monica Bay.
J. Craig Williams: And I am Craig Williams coming to you from Southern California. I write a legal blog called ‘May it please the court.’
Bob Ambrogi: Before we introduce today’s topic, let me just take a moment to thank our show’s sponsors Clio and Litéra.
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J. Craig Williams: And Bob, the topic today is the Deferred Action for Childhood Arrivals program, more commonly known as DACA, which was recently halted by President Trump. You may remember back in June of 2012 DACA was put in place by the Obama Administration to protect immigrants without legal status who came to the United States as children.
Attorney General Jeff Sessions has called the Obama Administration’s program an unconstitutional exercise of authority. Currently the DACA program has provided nearly 800,000 young immigrants that are known as DREAMers, stemming from the DREAM Act, reprieve from deportation and the ability to work legally in the US.
Bob Ambrogi: With President Trump’s decision to end DACA the issue now heads to Congress if Congress chooses to find a solution for to address this population that was previously eligible under DACA. And just this week the State of California filed a lawsuit against the Trump administration for his decision to rescind DACA.
Today in Lawyer 2 Lawyer we are going to take a look at DACA, talk about the DREAM Act, what Congress might do or not and the reality of deportation and a potential impact, future litigation, and what the future holds for DREAMers and their families.
J. Craig Williams: And Bob, to do that we’ve got a great lineup. Today, our first guest is Hans von Spakovsky, he is the senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Hans is an authority on a wide range of issues including civil rights, civil justice, the First Amendment and immigration.
Welcome to the show, Hans.
Hans von Spakovsky: Bob, thanks for having me.
Bob Ambrogi: Also joining us today is immigration attorney Erin J. Lee from the Law Offices of Erin J. Lee in San Diego, California. Erin has served as the primary attorney on hundreds of successful cases and is passionate about obtaining success for her clients. She has practiced it both at her own firm and in other firms where she has fought for the unification of families in the US and Mexico and other Latin countries.
In her free time she serves the community as a pro bono attorney with the American Bar Association’s Immigration Justice Project as well as serving as an attorney advisor for the North County Immigration and Citizenship Center. Welcome to Lawyer 2 Lawyer, Erin Lee.
Erin J. Lee: Thanks so much, I am glad to be here.
J. Craig Williams: And Erin, let’s start with you. We would like to kind of get an overview of the DACA program along with how President Obama established it, maybe a little explanation of how his argument is that it’s an Executive Branch function as opposed to the Sessions’ argument that it presumably is a legislative branch function. Give us a little bit of an overview of what we’re looking at.
Erin J. Lee: Sure. DACA was introduced in 2012, like you said, by President Obama via Executive Order. It was introduced in the form of an enforcement priority, it was a policy memo.
It was about exercising prosecutorial discretion and prioritizing the removal of certain individuals in the United States, which included, of course the DREAMers, and what the order did essentially was defer action against these individuals. It wasn’t conferring any type of legal status to them which is why proponents of the order don’t believe it is unconstitutional. It wasn’t giving these individuals any lawful status, no, no green card, no citizenship nothing like that, it was just like the title deferring action against them as in not removing them from the United States.
And with that if they met certain qualifications and passed certain background checks they would be able to qualify for a work permit.
Bob Ambrogi: Hans, you are taking the position that DACA — did President Obama lack the constitutional authority to put DACA into effect in the first place, explain that?
Hans von Spakovsky: Sure. But one correction, this was not done through an Executive Order, President Obama simply directed Department of Homeland Security to put this in as a new policy. Look, there’s two reasons why we know this was beyond the President’s authority. One, President Obama himself admitted that on numerous occasions in public when immigration advocates were urging him to do this, he said he couldn’t do it.
At one point in October 2010 he said, I am not a king, I can’t do these things just by myself, another occasion he said I can’t just suspend deportations through Executive Orders, that’s not the case. He acknowledged this was something that Congress had to do through legislation because of course Congress has plenary power over our immigration rules through the Constitution.
The second reason we know this was beyond his authority. As I remember he tried to implement a second program in 2014 called the DAPA program, that was Deferred Action for Parents of Americans and Lawful Permanent Residents. The benefits under both DACA and DAPA were virtually the same, a promise that you would not be deported, work permits issued and most importantly access to other government benefits such as Social Security, and if you recall the number of states sued over the second program, the DAPA program, and an injunction was issued by a lower Federal Court against the implementation of the program nationwide, the Fifth Circuit upheld it. The Supreme Court did not overturn it, and the reasons that the judges said he couldn’t put this in place was it was beyond his constitutional authority.
And the key there was that the administration argued that this was within the President’s power of prosecutorial discretion and no one disagreed and the courts didn’t disagree that the Executive Branch president have prosecutorial authority, and they can decide in a specific case not to prosecute or deport someone.
But as the court pointed out they weren’t just saying they weren’t going to prosecute under the immigration laws, they were providing positive access to benefits like work permits and other government benefits, and that the president did not have the authority to do it, that’s why the injunction was in place and that’s clearly why the DAPA program is beyond the authority of the president. It’s up to Congress, Congress can do this, the President can’t.
Bob Ambrogi: Erin, what’s your response to that? Do you agree that the President lacks — the President Obama lacked the authority to put DACA into effect in the first place?
Erin J. Lee: I disagree. Again, it did not confer any type of lawful status. Yes, it allowed certain individuals to obtain benefits, but I don’t think that’s outside the purview of his authority. I think the statements that he made in regards to making Congress Act is more in light of being able to give these individuals actual lawful status as a permanent residency or a visa of some sort, but a work permit does not do that.
So for those reasons I do not believe that’s outside of his — his authority and again, it is in a prosecutorial discretionary manner, it’s more about priorities, it’s about policies, it’s not about passing any laws that again would allow people to be here in the United States lawfully.
J. Craig Williams: Well, Hans, since President Trump has suspended DACA and now thrown the ball squarely into the Congress’ lap, what can we expect out of Congress?
Hans von Spakovsky: Well, I don’t know. There were several times as everyone knows over the past few years that a number of senators and members of the house tried to put together what they called a DREAM Act, can they do it now? I don’t know. The individuals who became eligible under DACA was a very specific and very limited number.
It’s now down to 690,000 people. Roughly another 100,000 did receive DACA work permits at some point, but those have lapsed either because they failed to renew, were deported for criminal activity or finagled a permanent green card. So we’re talking about 690,000. The DREAM Acts that were put into Congress in the past, the estimates on how many individuals would meet the requirements under that was upwards of two million, more than twice as much as this.
I don’t know if Congress is going to try to put something together that just applies to these specific DACA recipients or whether they’re going to try to come up with another DREAM Act, which has a broader application.
J. Craig Williams: And Erin, what’s your hope?
Erin J. Lee: Well, my hope is that some form of relief will be allowed for these DREAMers. Obviously, the humanitarian aspect of Immigration Law is in play here and I know that as recently as July of this year, there was a new DREAM Act proposed, and I think, and I’m hoping that within the next six months, they can make that happen.
Bob Ambrogi: Erin, what is the basis, I mean, lawsuits have been brought challenging President Trump’s rescission of DACA, what is the legal grounds for those lawsuits for the arguments that are being made?
Erin J. Lee: I believe it’s being made under the Fifth Amendment as well as they’re saying it’s a violation of the Administrative Procedures Act. I know that the University of California also filed a suit on the 8th of this month. I believe these cited those sections of the law as well. Of course, the University of California is a little bit different from the states who have filed lawsuits, but of course all are claiming the loss of vital members of the community in their lawsuits.
Bob Ambrogi: So as a due process argument is that the Fifth Amendment that these people were given some sort of a right or something that was being taken away from them without due process?
Erin J. Lee: I can’t be positive about that. I haven’t read the complaints.
J. Craig Williams: Erin, what’s been your experience working with DREAMers? I mean what are the selling points behind the people that are coming to Congress saying, save us, keep us here, don’t deport us?
Erin J. Lee: My personal experience with DREAMers stems from people who were brought here as 6-month-old infants to 15-year-old children. So it’s these folks who have come here who have don’t know anything other than living in the United States, who just want to be given an opportunity to live in the United States. The country they only really have lived in or know of, to live and to be able to live among their peers like they can, like a normal citizen. Go to school, for example, get financial aid if they need it or even getting a driver’s license, applying for jobs, I think having lacking that opportunity has stunted so many of these young individuals. I’d like to have them be able to pursue their dreams and I think a lot of these DACAs already have.
I know actually one of my lawyer colleagues, he is one of the first DACA lawyers to be barred in Florida, and now he’s representing the immigrant community there, doing great things. I think they just deserve the opportunity to excel in a country where they had no choice to be brought to.
In fact, a lot of my clients don’t even realize they’re in another country until they’re older and their friends are applying for driver’s licenses, and their parents, they realize they can’t apply, and they don’t understand why, and I think that’s just tragic.
Bob Ambrogi: Please stay with us, we’re going to continue this discussion about DACA and President Trump’s decision to rescind it in just a moment. But first, we are going to stop to hear a word from our sponsors. Please stay with us.
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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi and joining my co-host J. Craig Williams, and I today, our two guests Hans von Spakovsky; Senior Legal Fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and Erin J. Lee, an immigration attorney from San Diego, California.
Hans, we’ve been talking about DACA and there’s a lot of confusion I think because these people have been referred to as the DREAMers and there’s also have been talk of the DREAM Act. What is your position on what Congress should do? Would you like, are you looking to see Congress address this in a way that will provide some status to the people who’ve been covered by DACA or do you think it’s bad policy, generally speaking?
Hans von Spakovsky: Well, I think what needs to happen in Congress is what didn’t happen when President Obama put this in. The whole point of Congress and its ability to pass legislation is what do they do. They hold hearings, they hear from witnesses, and they get information on what the best solution is.
And two things that need to be considered. First of all, almost everyone who talks about the DACA program talks about, oh, the people who were 6-months-old when they came here and therefore speaking out of the language of their home countries and don’t know anything about the culture. But the DACA program also applied, for example, to 16-year-olds who came here. And anyone who has teenage kids like I do knows that by the time like a child is 16, a teenager, they’ve been in school for 10 years, they speak, read and write the language fluently and they are completely imbued in the culture they’ve grown up in.
So the idea that it’s somehow a hardship and a 16-year-old, who was brought in illegally, for example, from Mexico, who speaks Spanish, who knows the Mexican culture that there’s something wrong with that, I don’t think that’s right, and that’s something that needs to be looked at.
The other thing that I think has got to be done, if Congress considers doing something actually for the people who were only two or three when they came in, is if they’re going to be given legal status, if they’re going to be given amnesty, perhaps the ability to become citizens, the whole reason that’s being pushed is because people say, well, they weren’t responsible for this. It was their parents who did it, who brought them in illegally, who broke our laws.
Well, fine. If you’re going to do something for these people, who came in that young, you’ve got to ensure that they then don’t take advantage of our immigration laws and use that to sponsor their parents because that means the parents would then benefit from the illegal behavior. And I think that’s another issue that also needs to be looked at.
By the way, the majority of people who got benefits under DACA while they may have been young when they came in were adults at the time the benefits were given.
Bob Ambrogi: So on the age issue are you suggesting that it should – you advocating it be rolled back to an earlier age or you’re not taking a position on this but saying, it needs to be looked at and thought about?
Hans von Spakovsky: I think it’s something that Congress needs to look at and think about it.
J. Craig Williams: Erin, what about you. Can you talk about that? What the difference is that we’re talking about here when we talk about the DREAM Act versus DACA and what would you like to see Congress do here?
Erin J. Lee: Sure, and just to go to Hans’ comment really quick. DACA was not for people who were 16-year-olds when they came to the US, it was actually prior to turning 16, so people who came under 16th birthday would not have qualified to get DACA. So it would have been 15 and younger, that would be eligible.
But DREAMer — the DREAM Act would actually confer some type of lawful status like permanent residency. I think one of the first DREAM Acts from 2001 they proposed conditional residence for eight years and if everything panned out for the eight years, they would get their permanent residency and then after a certain amount of years they can obtain their citizenship, and this would of course include some type of education. If they had an education, if they had a job, if they are paying taxes, et cetera, I think those aspects can and should be considered for DREAMers and for the DREAM Act. The difference between DACA and DREAMers is exactly that.
So DACA again was a policy where they allowed certain individuals to obtain a work permit, again, not lawful status, so that’s the main difference between those two.
I definitely would like Congress to look at giving these individuals lawful status versus just a work permit. I don’t know if I agree with limiting the age, but I would like to see Congress act on that aspect in terms of giving these individuals’ lawful status.
Bob Ambrogi: What are the chances of Congress actually doing something, Hans? I mean, it seems — apart from this issue it seems that everything we hear says that Congress is unlikely to act on the DACA issue unless it’s tied to some broader immigration reform, and we’ve seen what’s happened with attempts in Congress in the past to come up with some broader immigration reform. I mean, do you have any predictions as to how this may play out over the next six months?
Hans von Spakovsky: Well, I guess I shouldn’t be too cynical, but they haven’t gotten a lot done, as you all know in almost any area they weren’t able to come to an agreement over Obamacare, they are now struggling with potential tax changes and so far they just haven’t gotten a lot done. When you add immigration on top of that, I don’t know.
On the other hand, Tom Cotton, Senator from Arkansas has put forward a bill that a lot of people like the RAISE Act to make changes and reforms in our Immigration Law, so I don’t know whether if they take a look at that and tie some kind of amendments into it that would take care of the DACA situation. Well, then perhaps they could get something done, but I think they’re going to be leery of doing anything until and unless we see real enforcement of our immigration laws and real enforcement of border security.
The polling shows very much that, that was a big priority issue with Americans. Americans welcome legal immigration, we are the most generous country in the world, when it comes to legal immigration, we take in a million legal immigrants a year, that’s more than any other country. But, at the same time, people I think have been tired over the past few years about our immigration laws not being enforced the way they should and proponents of this trying to extinguish the line between legal immigrants and those who came here illegally. And I think, folks want to see real enforcement done by Washington of our immigration laws.
J. Craig Williams: Hans, do you think that President Trump has any particular tactic in mind other than just simply getting the responsibility for this off his desk?
Hans von Spakovsky: Well, he has made — he has said publicly that — I believe he has said publicly, he has talked about getting funding for his border wall as part of a deal on this, but I don’t work in the White House so I really don’t have an insight as to what they think they would agree to if Congress came up with some kind of fix for this problem.
Bob Ambrogi: Erin, what are you telling your clients now when they come to you and ask about this?
Erin J. Lee: That’s a good question. I share some of Hans’ cynicism here in terms of Congress being able to act in the next six months. I mean, we’ve been talking about the DREAM Act for the last 16 years. Like Hans said when DACA was introduced, I think Congress should have sat down and had some conversations about this, but I am not sure if that was ever done, and here we are, five years later, under a different administration, and all these people are caught in limbo once again.
But the difference now is that all their information is out there for everyone to take or more importantly ice to pain and it exposes them again, once again to the threat of deportation, and that’s very scary for my clients.
So at this point I am telling my clients not to freak out of course, but we are of course trying to explore different options and really just praying and hoping that something is going to be done within the next couple months.
Bob Ambrogi: There have to be a lot of people who are concerned that they wishing they had never registered for DACA in the first place right now.
Hans von Spakovsky: Erin may have seen this too, but I think that one of the spokesmen for Department of Homeland Security after the President made this announcement, tried to make people relax a little bit about this and said that they were not about to start going through the DACA list and using that for deportation purposes.
J. Craig Williams: It seems kind of foolish to think that they wouldn’t.
Hans von Spakovsky: I know, but I think they have declared a policy that they’re not going to do that and as I said at the moment they have been concentrating on other priorities including trying to get criminal aliens out of the country.
Bob Ambrogi: What do you think about the allegations? I mean it’s been — I know the lawsuit brought by the State Attorneys General — I’m not sure about the UC lawsuit you mentioned earlier, but I know that lawsuit brought by the State Attorneys General alleges that President Trump was motivated by discriminatory animus against Mexicans in this action. Do either of you want to comment on that or have an opinion about that?
Hans von Spakovsky: I think that’s a sign of how weak the lawsuit is that they have filed. Look, we have already got the Federal Court saying that the President doesn’t have the authority — a president doesn’t have the authority to provide work authorizations and access to government benefits, which is what was done with the DACA program. They did do with the DAPA program, but I said the benefits were virtually the same under both programs. So I just don’t see —
Bob Ambrogi: They haven’t specifically ruled on DACA though.
Hans von Spakovsky: That is correct, but the programs were virtually the same. The only thing that was different between them was which group of illegal aliens they targeted, and I just don’t think they have had a claim that stand up under either the Constitution or Federal Immigration Law that this program should have been continued by the president.
Bob Ambrogi: Erin, your thoughts on that, on the discrimination issue?
Erin J. Lee: Yeah. I think there are some messages there that I see I can kind of read between the lines as we — I think we’re able to see with his travel ban and the Courts did recognize that. So I think there’s some similarities in that regard, but I can’t speak to whether or not that’s a legal ground to overturn his actions.
Hans von Spakovsky: Yeah, except the travel ban has virtually been upheld, the stage pretty much lifted by the Supreme Court until they hear the case which is happening in October and they just did that again, just a day or so ago in a subsequent case that came out in California.
So this argument just doesn’t seem to be working for those bringing it like the State of California and others.
J. Craig Williams: Well, it looks like we’ve just about reached the end of our program, so we would like to take this opportunity to invite our guests to share their final thoughts and provide their contact information so our listeners can reach out to you if they would like.
So let’s — Hans, let’s start with you.
Hans von Spakovsky: Well, the one thing I would say about it is, look, all the criticism with the President over this has concentrated on whether or not DACA was a good program or a bad program, I think that misguided. The President did what was right under the Constitution and our system of government ending a program that the President didn’t have the authority to do. The arguments over what to do with these individuals belongs in the halls of Congress not in the Executive Branch, not in the White House, and I can be contacted and looked at my drives to be seen at HYPERLINK “http://www.heritage.org” heritage.org.
J. Craig Williams: Great, and Erin?
Erin J. Lee: Yes, thank you. It’s a pleasure to be here and really at the end of the day what we want to see is for these individuals to be afforded the opportunity to be in the United States and contribute as they have been for the last five years.
I just want to point out really quickly that economically the lot of studies and experts say that the cancellation of DACA is not going to take jobs away from Americans but rather it’s going to hurt our economy quite significantly.
And over the decade say our GDP may drop $433 billion even, I mean, executives from Apple, Google, Facebook, Microsoft, Amazon have all come out and they have said that their DREAMers are helping their businesses grow so they can create jobs and maintain their global competitive advantage.
So I believe not only economically but for humanitarian reasons these folks deserve to be here, and if you want to talk to me about that you can find me at HYPERLINK “http://www.erinjlee.com” erinjlee.com and my phone number is (619) 361-1015.
J. Craig Williams: Great. Well, thank you very much for being with us today. That brings us to the end of our show. If you would like what you heard today, please rate us in Apple Podcasts.
Bob Ambrogi: This is Bob Ambrogi, let me just say thanks to both of our guests for taking the time to be with us today. We really appreciate your time and insights on this, and thanks to all of our listeners for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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