On October 5th, a Fifth Circuit Court of Appeals in Texas upheld a ruling by a lower court that deemed the Deferred Action for Childhood Arrivals (DACA) program illegal. Chief Fifth Circuit Judge Priscilla Richman wrote that “DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits. Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them” in her decision to uphold a Texas District Court’s July 2021 ruling.
Originally implemented as an executive order in 2012 by former President Barack Obama, DACA gives undocumented immigrants work permits and offers protection from deportation.
As a result of the Appeals court’s decision, DACA recipients who currently qualify under the program will continue to earn federal protection, but as of October 31st, the Department of Homeland Security is no longer allowed to accept DACA requests. Those who currently qualify under the program must be under 31 years of age as of June 15, 2012, in addition to meeting requirements that affirm their continuous residence in the United States since June 15, 2007 and their arrival in the U.S. prior to turning 16. The program also requires DACA recipients to reapply for renewal of their status every two years.
The Fifth Circuit Court has sent the DACA case back to the Texas District Court after approving the stay, and the case is likely to reach the Supreme Court where it will face the challenge of a conservative majority. More than 600,000 DACA recipients are at risk for deportation should the Texas District Court’s ruling be affirmed. Because partisan courts have jeopardized DACA for years, many are looking to Congress for a legislative solution to this ongoing threat.
DACA recipients—also known as “Dreamers,” after the DREAM Act introduced in Congress prior to the implementation of DACA—have been at the whim of partisan politics since the program was implemented in 2012. Former Representative Luis Gutiérrez served Illinois’s fourth congressional district from 1993 until 2019, during which he led Congress in advocating for comprehensive immigration reform (CIR). The first Latinx member of Congress from the Midwest, Gutiérrez has been a proponent of numerous bipartisan efforts to enshrine protections for immigrants in the United States, and he influenced a wave of executive actions during former President Obama’s second term, including DACA. An advocate for comprehensive immigrantion reform—particularly in support of Latinx U.S. residents—during his time as a representative, Gutiérrez’s negotiating with former President Obama led to the creation of DACA in 2012.
Prior to serving as a representative, he was active in Chicago politics, having served as an alderman for former Mayor Harold Washington’s administration from 1984 to 1992 when he was elected to the House.
Gutiérrez is familiar with the struggle to achieve bipartisanship in the midst of the polarization that characterizes today’s House, but he is even more acutely aware of the ignorance demonstrated by both Republicans and Democrats on issues of immigration reform. Gutiérrez championed the DREAM Act alongside former Republican Senator John McCain of Arizona and Democratic Senator Ted Kennedy of Massachusetts. His mediation resulted in the passage of the DREAM Act in the House, but the bill ultimately failed by five votes in the Senate in 2010. The bill outlined a three-step process to citizenship through conditional permanent residence, lawful permanent residence, and naturalization for immigrants who arrived in the U.S. as children and plan to attend college or serve in the military for two years. After a number of Democrats voted against the bill in anticipation of the 2012 election, this fracturing of the Democratic party ultimately tanked the possibility of legislating protections for immigrants.
Salvaging DACA has recently become a priority of the lame duck Democratic Congress. Despite Democrats’ efforts to retain the Senate in the midterm elections this past November, Gutiérrez worries for the future of DACA. The Gate spoke with Gutiérrez on the troubled history of immigration reform and the peril of the many DREAMers who would be impacted by a complete DACA ban.
The Gate: What are your immediate reactions to the Fifth Circuit Court’s decision to uphold the illegality of DACA?
Representative Luis Gutiérrez: We have known for a long time that DACA was in danger of being eliminated by the courts. It should be no surprise to us that Texas leads the charge because what Republicans do is they look for judges and in certain parts of the circuit court system that they know are going to be amenable. So, if you find a judge who has already pronounced and said, “I think Obama has gone way over whatever constitutional prerogative he has,” and then you go to that judge and say, “let's eliminate that cowboy.” The judicial system has become so politicized. They pick and choose. They're not going to come to Illinois or New York or San Francisco to challenge the law. They're going to do it in Texas and they're going to find a judge to do that. I think this has steadily been coming to this catastrophic end. And the Supreme Court the last time, because we had Justice Roberts, who kind of said [...], “You can't just eliminate the program with no rationale just because you feel like it. You must give us a reason.
Secondly, I mean, Democrats are just cowards…They really don't care. We're not a priority, even though we have seen that if any group of immigrants has demonstrated that there is no fear, there should be no fear among the American public to legalize in the undocumented. It's the Dreamers, because you and I both know that if they do anything wrong, it's top of the news on Fox News. But nothing. All we hear about is their accomplishments, their success, and how they've integrated themselves fully and woven themselves into our society of laws.
The Gate: Do the results of the midterms give you any hope for the possibility of passing legislation?
Luis Gutiérrez: The left in the United States have never made immigration an important issue. Never have. They look at civil rights and human rights as a binary between white America and black America and brown America or immigrant America. So while Bernie Sanders may have gone to marches during the Civil Rights movement and understands that [we] understand nothing about immigrants, he's still a white man from Vermont.
I mean, they're just not [going to do anything for immigrants]. I mean, the fact is that they pass legislation and they feel good about the legislation. They passed the DREAM Act in the House in the last two years and they passed an essential workers bill that would legalize millions and millions of people. But they didn't do anything to get it over to the Senate. Once the Build Back Better went there, they called it the Anti-Inflation Act, but you notice that nothing was there for immigrants.
The Gate: What sort of action should Congress take to protect Dreamers? What would you consider to be an achievable solution given the current state of Congress?
Luis Gutiérrez: Comprehensive immigration reform, which is what we always talked about. And comprehensive immigration reform is always going to have H-1B visas in it because we need them now. Why? Because when you negotiate politically, and you're pro-immigrant, and you want to save 11 million people from the injustice and the brutality in which they live in, and your counterparts really don't give a sh** about that, but they want triple fencing at the border. What do you do? You pay the ransom.
You don't want to have H-1B visas? Then why don't you invest right in students studying in those areas of high tech so that we don't have to bring people? There is literally nobody to do the work because the population—the young people—have left. There's a reason why immigrants keep coming, right? Because there's always situations. So I believe a society should have a very high appreciation and love for men and women who work the soil. Because they feed us. How come you never see a raid of a couple of million workers that everyday the government knows are undocumented in the orange fields and lettuce fields and tomato fields and the cherry fields and the onion fields of our agriculture? Because you would shut down the production. That's not something you're telling young people to do, but somebody's got to do it. And in our society, there's always been a new emergence of a new immigrant class that comes. And right now, America actually needs more immigrants to fulfill the jobs that are going unfilled, not in the high tech industry, but in so many other nursing homes and in agricultural and meatpacking plants.
The Gate: What sacrifices do you think Democrats have to make right now with current Republicans or those opposing immigration reform?
Luis Gutiérrez: I don't. The Republicans right now are not going to do immigration. If you look at if you look extremists, white supremacist extremists, right, what do they talk most about that's wrong with America? “Immigrants are coming to steal our jobs.” It used to be the Jews, used to be black people. Used to be the purity of the race of the white. You know, all of the things—ugly, disgusting things that make up the racism of white supremacists, but now they're focused on immigrants and the people that look like me. So even when you take them and the Republican Party we put on Fox News, what's the one thing they just [talk about]: immigrants. The border is open. “The porous border.” And now they're saying that the immigrants are bringing the fentanyl and they're killing. Yes, tens of thousands of Americans are dying because of fentanyl. And yes, drug traffickers bring in. But the people crossing the border are fleeing Venezuela…You know, we invested in General Motors under Biden and saved General Motors from bankruptcy...the Democrats are terrible at taking credit for shit like that. We should tell people, “We saved your jobs!” And not one Republican voted to bail out General Motors… So I am very pessimistic about our way forward at this particular point, because we won't have a majority in the House. And if you turn on Fox News, they have another cable station, Newsmax, and you know what they talk about twenty-four seven? Immigration. So the Republican majority in the House is never going to do anything on immigration. They just won't. It's the glue that keeps them together. You know, we had an opportunity. But then you have the rules in the Senate, right? They call for a supermajority to get things passed. And until we overrule that or eliminate the filibuster, we're not going to get things passed.
The Gate: We know that 600,000 DACA recipients will be affected by the current ruling. What remains uncertain for them? What are the possible ways this ruling could affect them, and how long will it take for these changes to be effectuated? Essentially, how much longer can DACA protect its recipients if this ruling is upheld?
Luis Gutiérrez: Everything is at stake for them. The government knows where they live. They've been filing income tax returns. They know if they're married. They know everything about them. They've been told every two years they have to reapply. You didn't apply once; you've been reapplying and reapplying and reapplying to renew your status. I think it's every other year. It's a very dangerous situation. And, I think it's going to make it harder in the future to have executive orders that people will feel confident in. In order to bring comprehensive immigration reform through a legislative process. People are going to be reluctant to sign up and join up.
I think, for most Americans, and especially for those of us who care and love and cherish the contribution of immigrants...it's a destruction of [immigrants’] dreams, of their hopes. They fought hard. They paid their taxes. They played by the rules. Many of them have done so since 2012. We're talking about a decade. What do you do with those law degrees? What do you do with those medical degrees? What do you do with their fundamental lives and their families? I think it's also going to be a reckoning for the lack of action on the part of the House of Representatives in the past, because they did pass the DREAM Act, but they didn't move it forward. And we should have done it. But to me, it's going to be heartbreaking.
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