Many of the country’s roughly 2 million Dreamers would gain a pathway to citizenship under a plan released Wednesday by 2020 Democratic presidential candidate Kamala Harris, who would use executive action to break through congressional deadlock.
In a plan that reflects the creative legal thinking of California’s former attorney general, Harris would reinstate the Obama-era Deferred Action for Childhood Arrivals program and remove the age restrictions on applying. But unlike the original program, which gives work authorizations and provides deportation relief to unauthorized migrants who arrived as children, the plan would open up a pathway to citizenship without requiring Congress to pass legislation.
“Congress must pass 21st century immigration reform, and Harris will fight to get it done as president,” the campaign wrote in a statement. “But while she fights to reform our laws, Harris will do everything within her legal authority as president to roll back Donald Trump’s anti-immigrant agenda and build a future that lives up to America’s values.”
Under the proposed plan, Harris would use executive action to grant Dreamers “parole-in-place” and retroactively issue them work authorizations. That legal exception, carved out in the Immigration and Nationality Act but not typically used for Dreamers in the past, would allow them to apply for green cards through a direct family member or employer. Those who obtain legal permanent residence are allowed to apply for citizenship.
Harris would also issue a rule clarifying that Dreamers were not at “fault” for living in the United States without legal status, removing another technical barrier that has prevented Dreamers from getting on the right side of U.S. immigration law.
Outside observers who consulted with the Harris campaign to assess the viability of the proposal said it reflected a unique approach to work around the problems posed by America’s notoriously complex immigration laws.
“It’s a bold move on her part,” said David Leopold, a prominent immigration lawyer who consulted on the plan for the Harris campaign without pay. “What I like about this very much is that it’s all founded in the statute … She’s going to use executive action in a way that is unassailable in the courts.”
It’s not immediately clear how many DACA recipients would qualify to become permanent residents under the plan. But it would clearly resolve the plight of Dreamers married to U.S. citizens who, under current law, have to return to their home countries before applying to become legal residents ― a step that most refuse to take, because U.S. law also typically bars them from reentering the country for years if they had lived and worked here illegally in the past.
“It’s brilliant and original,” Frank Sharry, the executive director of immigrant rights group America’s Voice, wrote in an email to HuffPost. “The vast majority of Americans support a path to citizenship for Dreamers, but if Republicans continue to block it, this is the way forward. Harris deserves a lot of credit for creating a bold strategy for producing a long overdue breakthrough.”
For Dreamers with U.S. citizen spouses, it would likely take about six to 12 months after receiving DACA to achieve legal permanent residence under Harris’ plan, according to Stephen Legomsky, the former chief counsel for U.S. Citizenship and Immigration Services.
The proposal would make other changes to the DACA program. It would eliminate the current upper cut-off age of 31 for applicants. It would also allow those who arrived as late as age 17 to apply, up from the program’s current limit of age 15. The renewable work authorization would be valid for three years instead of two.
The proposal left some questions unanswered. Currently, only those who entered in the year 2012 or earlier are eligible for DACA. The Harris campaign says she would update that cut-off year if elected, opening up the possibility that some of the hundreds of thousands of Central American minors who entered the United States since 2014 might qualify. But the campaign declined to specify a date, saying Harris would make that decision at the time of enactment.
Harris’ plan would also extend deportation protections and work authorizations to the parents of Dreamers along the lines of President Barack Obama’s Deferred Action for Parents of Americans program. Her plan would be more expansive than Obama’s, however. Those who can demonstrate deep community connections or military service, for example, would be eligible to apply regardless of whether they have children with U.S. citizenship or legal permanent residence.
All told, Harris’ proposal would offer deportation protections for some 6 million unauthorized migrants, the campaign estimates.
The DAPA program, implemented in 2014, never went into effect after U.S. District Court Judge Andrew Hanen temporarily blocked it. The U.S. Supreme Court upheld Hanen’s ruling, which cited violations of the Administrative Procedure Act. The Trump administration scrapped DAPA shortly after taking office.
Reviving Obama’s attempt to shield the parents of Dreamers from deportation would likely invite similar legal challenges from Republican-led states that sued the first time around to block the program. But Harris’ plan specifies that, if elected, her administration would hew closely to the Administrative Procedure Act to avoid the legal pitfalls that dogged the Obama administration.
The Obama administration first implemented DACA in 2012, amid a congressional impasse over attempts to find a solution for unauthorized migrants who arrived as children. The program provides applicants with a two-year, renewable work permit and generally shields them from deportation if they avoid serious criminal charges.
The Trump administration canceled the program in September 2017, with then-Attorney General Jeff Sessions arguing that it amounted to an unconstitutional usurpation of congressional authority.
But a spate of federal lawsuits led multiple federal judges to issue temporary injunctions to keep the program in place, typically arguing that the Trump administration fell afoul of the same Administrative Procedure Act that Judge Hanen cited when invalidating DAPA. The Supreme Court signaled this week that it would consider pending litigation over the DACA program, according to CNN.
Support for DACA is widespread among Democrats. All three Democratic presidential candidates who have released comprehensive immigration platforms ― former Housing and Urban Development Director Julián Castro, former U.S. Rep. Beto O’Rourke and Washington Gov. Jay Inslee ― say they would reinstate the program.
But Harris’ legal gymnastics will likely widen the scope of the debate about the future of Dreamers.