Can Democrats Save DACA? Why Lawsuits From States Won't Make a Difference

Demonstrators march through a tunnel during a demonstration in response to the Trump Administration's announcement that it would end the Deferred Action for Childhood Arrivals (DACA) program on September 5, 2017 in Washington, DC. Getty Images/ Zach Gibson

The almost 800,000 undocumented immigrants known as "Dreamers" who Tuesday saw their legal status in the United States largely evaporate as Attorney General Jeff Sessions announced the end of the DACA immigration program may only have one true hope of remaining in the only country many of them have ever known: Congress.

Immigration attorneys and legal experts told Newsweek that the way the Deferred Action for Childhood Arrivals order – better known as DACA – was written and applied back in 2012 leaves little legal wiggle room for the Dreamers. Instead, a bipartisan bill passed in Congress is the best chance for them staying in the U.S. long-term.

"The Obama administration wrote it so that it was really clear it could be voided," said Martin Valko, a managing partner at Texas-based Chavez & Valko, which focuses on immigration law. Valko, who said his firm has handled hundreds of DACA applications, added that the language was put in place to avoid the federal government being sued and said clients were told there was a chance DACA could be rescinded.

Attorneys general from New York and Washington threatened on Monday to sue and protect "Dreamers." But the entire issue is "unprecedented," said executive director for the American Immigration Lawyers Association (AILA), Benjamin Johnson, meaning it is unclear what the states could challenge. Just as President Barack Obama had the authority to put DACA in place, current President Donald Trump also had the power to rescind it.

"Here's the truth, these kids have always been in jeopardy," Johnson said. He called Sessions' claim that Dreamers had been taking jobs from Americans and hurting the country's culture were "offensive."

Obama was hoping to pressure Congress to pass immigration reform when he decreed in 2012 that immigrants under the age of 30 who came to the U.S. before they were 16, did not pose a criminal or national security threat, and were in school or in the military could temporarily stay in the country under his DACA program. Obama's effort came as Democrats could not find a majority to pass the DREAM Act, a permanent plant to help young immigrants in the U.S. find a path toward legal status.

Democrats are now looking to advance the policy once more, but this time under a Republican-led Congress and White House. House Minority Leader Nancy Pelosi called on Republican and House Majority Leader Paul Ryan on Tuesday to bring the policy to the floor for a vote as it's currently written to avoid expected mass deportations of "Dreamers."

In the meantime, immigrants have been advised for months to start filing renewal applications so as to at least buy some extra time, North Carolina-based attorney Jeremy McKinney said.

"The biggest victims are those who expire after March 2018," McKinney said.

McKinney, who has spent 20 of his 21 years as an attorney practicing immigration law, recalled when the DREAM Act nearly broke through a Senate filibuster in December 2010, just before the Republicans were about to retake the majority in Congress.

The act had passed in the House of Representatives and three Republicans actually switched sides to support it, but five Democrats, despite Obama's backing of the bill, shot it down. With 55 "yes" votes, the measure came five votes away from knocking back the GOP's filibuster.

"The stars and planets," McKinney said, "have not been able to align for the bipartisan bill."