by Jackie Gardina

Local experts discuss the legal hurdles and issues facing President-elect Donald Trump in his first 100 days in office. This week, we continue with President Trump, the First Amendment and the Deferred Action for Childhood Arrivals program.

President Trump and the Dreamers

On Jan. 25, President Donald Trump issued an executive order entitled “Enhancing Public Safety in the Interior of the United States.” The order received wide attention because it threatened to withhold federal funding from so-called sanctuary cities. But buried deep within the order was a dramatic shift in immigration enforcement priorities.

The new enforcement priorities don’t just mark a sharp change from President Barack Obama’s approach; they arguably represent a break from Trump’s previous commitment to target only undocumented immigrants with criminal convictions.
Under the Obama administration, agents were asked to pursue high-priority targets like gang members, murderers and other people who had committed serious crimes. Agents were urged to exercise caution when detaining immigrants with U.S. citizen children, family members of military personnel, and people who otherwise have long-standing ties to their communities.

Under the new order undocumented immigrants are considered a priority even if they have only “committed acts that constitute a chargeable offense.” Because entering the country without authorization is deemed a “chargeable offense,” it casts the net much wider and suggests that Trump is not limiting deportation to “bad hombres” with criminal records.

The shift was immediately evident. Immigration, Customs and Enforcement (ICE) agents engaged in a series of “targeted enforcement operations” arresting nearly 700 immigrants. In a separate incident, Guadalupe Garcia de Rayos, a 35-year-old mother of two who arrived from Mexico as a teenager, attended what had been a routine immigration check-in and was deported within 24 hours. Immigration agents in Seattle arrested a 23-year-old undocumented Mexican immigrant named Daniel Ramírez Medina and Texas officials detained Josue Romero, a 19-year-old art student in San Antonio even though both had been granted temporary relief from deportation under the Obama administration’s Deferred Action for Childhood Arrivals program (DACA).

Agents’ decisions to detain Ramírez Medina and Romero raised serious concerns about how Trump planned to address the 750,000 immigrants — the so-called Dreamers — currently shielded from deportation by DACA. Under DACA, undocumented immigrants who arrived in the United States as minors, and who met certain eligibility standards, could obtain two-year renewable stays of deportation and work permits. Nearly half of all Dreamers are California residents.

While acting quickly on many of his campaign promises, Trump has not yet signed the draft executive order that repeals DACA. Because DACA is still in place, both Ramírez Medina and Romero have filed lawsuits challenging their detention and potential deportation, claiming that DACA provides certain protections. Trump appears to recognize the political complexities of repeal. In a recent press conference he stated that the Dreamers would be addressed “with heart.”

But it is possible to end the program without Trump actually repealing the executive order. Attorney General Jeff Sessions, a vocal critic of deportation relief as a senator, could determine that DACA is not legal or is no longer a responsible use of prosecutorial discretion. If he made such a determination, the Department of Homeland Security would be instructed to stop awarding and renewing work permits.

Another way to end the program without repealing the executive order is through the courts. A handful of governors are considering challenging DACA. If they sue, Sessions could instruct his lawyers not to defend the program, exposing it to indefinite suspension by a federal judge.

Congress could save DACA. In December, a bipartisan group of senators introduced the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act, which would provide work authorization and relief from deportation to individuals who are eligible for the DACA program. An identical bill was introduced in the House. Individuals with DACA status would automatically have provisional protected presence. Importantly, the BRIDGE bill also would impose restrictions on the sharing of information in DACA, and provisional protected presence applications with ICE and U.S. Customs and Border Protection for purposes of immigration enforcement.

Trump’s immigration policies are still unfolding. What is clear, however, is that he is acting consistently with his harsh campaign rhetoric regarding immigration. With the largest population of undocumented immigrants in the nation, California will be on the forefront of this evolving issue.

Santa Barbara and Ventura Colleges of Law (COL) Dean Jackie Gardina’s experience in higher education includes both academic and administrative positions. Established in 1969, COL, an accredited nonprofit institution was founded to expand opportunities and broaden access to legal education. For more information, visit www.collegesoflaw.edu.