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More than 2,500 young undocumented Dreamers have applied for DACA in recent months, among them Phoenix university student Daniel Hernandez.
Hernandez was blocked from applying for the Obama-era Deferred Action for Childhood Arrivals program under the Trump administration, which tried to rescind the program.Â
The DACA program grants temporary protection from deportation and work permits to undocumented immigrants brought to the U.S. as children, known as Dreamers. Trump said the program was unlawful.
But in December, a federal judge in Brooklyn ordered the government to fully restore the program, including accepting and processing new applications. The order by Judge Nicholas Garaufis of the U.S. District Court in Brooklyn followed the Supreme Court’s June ruling that the Trump administration improperly tried to rescind the program, without considering whether the program was lawful.
The December order opened the door for Hernandez and other undocumented Dreamers to apply for the first time. It also restored the program from one year to two years.
Through the end of December, 2,713 Dreamers have applied for DACA for the first time, according to a Department of Homeland Security status report filed in federal court on Jan. 4 at the request of Garaufis.
On Jan. 13, Google announced that it will grant $250,000 to United We Dream, a nonprofit organization that advocates for Dreamers, which will cover the costs of about 500 Dreamers to apply for DACA.
“We believe it’s important that Dreamers have a chance to apply for protection under the program so that they can safeguard their status in the United States,” Google’s Senior Vice President Kent Walker said.
But there is concern many Dreamers may not be able to afford the application fee because of economic hardship caused by the global pandemic, “especially for the many immigrants playing essential roles on the front lines.”
There are about 650,000 Dreamers in the DACA program, including about 24,000 in Arizona.
The fate of DACA recipients, however, remains uncertain.
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A separate lawsuit challenging the legality of the DACA program is still in a federal court in Texas.
A ruling by Judge Andrew Hanen of the U.S. District Court in Houston could come any day. Texas and eight other states have asked Hanen to end the program, arguing it is unlawful.
DACA recipients are eligible for permits allowing them to work legally in the U.S. The Texas lawsuit argues that only Congress has the authority to provide benefits to immigrants, said Stephen Yale-Loehr, a professor at Cornell University Law School.
Hanen has made comments during court hearings that he is leaning towards ruling against the DACA program, Yale-Loehr said.
“He certainly seemed to indicate that the DACA program was illegal,” Yale-Loehr said.
At issue is whether the DACA program is an exercise in prosecutorial discretion, which the immigration agency already has, or whether the program created additional benefits that only Congress can enact, he said.Â
Yale-Loehr believes the program is lawful because Deferred Action has been on the books for 50 years and has benefitted many people. The work permits that DACA recipients receive stem from separate regulations that say that anyone granted deferred action from deportation is eligible for a work permit, he said.
The work permits allow immigrants granted deferred action from deportation to support themselves while living in the U.S. without formal legal status, immigration experts have said.
The Trump administration did not fight the Texas lawsuit.
But on his first day in office, President Joe Biden signed a memorandum that directs his attorney general to take actions to legally “preserve and fortify” the DACA program.
Biden also proposed immigration legislation that if passed by Congress would allow DACA recipients to immediately receive permanent legal residency visas, known as green cards, and then citizenship three years after.
Given the change in administration, and Biden’s commitment to preserving the DACA program, the judge may decide to hold off on his decision to give the Biden administration time to file legal arguments defending the program, said Thomas Saenz.
He is president and general counsel of the Mexican American Legal Defense and Education Fund, a civil rights organization that has defended the DACA program in the Texas lawsuit case.
But even if Hanen rules that the DACA program isillegal, the judge probably would call for the program to be phased out slowly, not ended abruptly to avoid suddenly upending the lives of DACA recipients, Saenz said.
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“Under no circumstances would we expect someone who is in the middle of a two-year period of DACA to have that revoked,” Saenz said. “Even under the worst days of Trump, no one expected that people who had two years of DACA would be told, ‘Hey, your DACA ends tomorrow.’ It would have been phased out as their two-year eligibility expired. They just would not have been renewed.”
Long term, Saenz added, “there needs to be legislation enacted permanently to protect DACA recipients and provide them with a pathway to citizenship.”
Advocates, meanwhile, are encouraging Dreamers who are eligible for DACA to go ahead and apply, despite the impending DACA ruling in the Texas case, said Juliana Macedo do Nascimento, state and local policy manager for United We Dream.
Even if Hanen rules that the program is illegal, the Biden administration will likely appeal, Macedo do Nascimento said. However, it seems less likely that the Supreme Court would rule in favor of the DACA program a second time, given that Trump’s appointment of  Amy Coney Barrett to replace the late liberal Ruth Bader Ginsburg has made the court more conservative. Coney Barrett was confirmed in October, after the Supreme Court’s DACA ruling in June.
In the Phoenix area, the nonprofit Arizona Dream Act Coalition has helped about 140 people apply for DACA since December, said Karina Ruiz, the president.
Hernandez was one of them.
If approved, Hernandez said he will worry less about the possibility of being deported, so he can concentrate more on his studies at Grand Canyon University, where he is majoring in entrepreneurial studies with a minoring in marketing.
“I had flashes of time in which I would realize the severity of my situation,” Hernandez said. “I knew that if I was in the wrong place at the wrong time something bad could happen.”
Hernandez, 18, was born in Guatemala. His parents brought him to the U.S. when he was 3. Under U.S. law, he has no way to legalize his immigration status.
He recalled an incident in January 2020 when a friend was pulled over by a police officer while he was a passenger. At the time, Hernandez was a senior at Washington High School in Phoenix. They were on their way to Chandler to watch a high school soccer game.
The police officer asked Hernandez for identification. All he had was his high school ID. Hernandez was terrified as he waited for the police officer to run his name through a computer system, certain that he would be turned over to immigration authorities and deported.
He remembers hyperventilating and thinking, “This is going to be my last day in Arizona, just going to a school event that every kid should enjoy.”
Instead, Hernandez was relieved when the officer handed back his ID and let them go.
The incident made him realize how his life could change in an instant.
“That was pretty scary. I can’t even pretend that it was not,” Hernandez said. “I was just trying to be a regular American and that event was difficult. It was a struggle for a while just trying to stay sane and not thinking about my life being in danger.”
He hopes to be approved for DACA by the end of March.
In addition to not worrying about being deported, the DACA program will allow him to work legally to help pay for college expenses. It will also make him eligible to get a driver’s license so he can drive legally to classes.
Eventually, he wants to start his own business.
“I would like to be able to find a nice job in March where I earn more money and start pushing towards my goals,” he said.
He’s optimistic that Biden’s election means legislation will finally get enacted allowing DACA recipients to gain permanent legal status.
“This has been a very important year” for Dreamers, he said.
Reach the reporter at daniel.gonzalez@arizonarepublic.com or at 602-444-8312. Follow him on Twitter @azdangonzalez.
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