Gov. Jay Inslee says Washington may try to defend DACA in court if the president doesn’t, but the state’s legal options depend on what Trump does next. Dreamers and their advocates are bracing themselves.
As a deadline looms for President Donald Trump to decide what he wants to do about young people illegally brought to this country as children, Gov. Jay Inslee said the state will not give up on the plight of Dreamers without a fight.
“This is a moral issue,” the governor said.
He was speaking on a conference call Wednesday with Miami Archbishop Thomas Wenski, both signatories to a statement urging Trump to defend Dreamers against a court challenge threatened by 10 state attorneys general who want to end the program. More than 1,800 political, religious and law-enforcement leaders from around the country also signed the statement, including seven other governors and hundreds of mayors and legislators — most of them Democrats.
Yet while state leaders may have some legal options to defend the Deferred Action for Childhood Arrivals, or DACA, program without Trump, they may be out of luck if the president decides to kill it himself. So Dreamers and their advocates are preparing for that possibility.
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Roughly 19,000 DACA recipients live in Washington, according to federal figures.
The group of attorneys general opposed to DACA has given Trump a Sept. 5 deadline to end the program, which gives renewable two-year work permits to qualifying undocumented immigrants. If the president does not do as they wish, the attorneys general have vowed to contest DACA’s validity in a Texas federal court.
The Trump administration has not yet said whether it would defend the program if that happens — DACA is still under review, said a White House spokeswoman in an email — and Wednesday’s statement from leaders around the country made an economic as well as moral argument. Removing some 800,000 Dreamers from the nation’s workforce would cost an estimated $460 billion in gross domestic product, the statement said.
Should Trump decide not to defend DACA in court, Inslee said he would urge state Attorney General Bob Ferguson to try to intervene. He said that he hadn’t talked to Ferguson yet, but that he imagined that some kind of “estoppel” legal argument would apply.
That argument is used to stop the government from taking action based on earlier promises or advice — in this case, the promise to these young people that they could live and work here as long as they stayed out of trouble, according to Inslee.
Asked about Inslee’s comments, Ferguson didn’t specifically say whether he would try to intervene if the case is brought in Texas federal court or what arguments he might use. But he pointed to a letter he signed in July, from 20 attorneys general, urging the president to uphold DACA.
“I pledged to defend DACA by all appropriate means,” Ferguson said in a Wednesday statement.
His ability to do so, however, would be more limited if Trump ended DACA on his own.
“Unfortunately, I don’t see an avenue for the states to contest that,” said Jorge Barón, executive director of Northwest Immigrant Rights Project (NWIRP). “A program created by presidential action can be undone by presidential action.”
President Barack Obama created DACA in 2012.
But the legal landscape also depends on how Trump might end the program. NWIRP legal director Matt Adams judged it likely that the president would allow DACA to peter out by not renewing permits and declining to issue new ones.
But it’s also possible that the president might order permits to be rescinded right away or that DACA beneficiaries — and their parents — be put into deportation proceedings. That would be grounds for an estoppel argument, Adams said.
In instruction materials for DACA applications, the government says it will not use information provided, including names of family members, for enforcement purposes, according to Adams.
The uncertainty gnaws at Luis Cortes, a Kent immigration lawyer who is himself a Dreamer. If the government seeks to deport him, he said, “I will be prosecuted by some of the people I now consider colleagues.”
While he waits to find out, he would still feel an obligation to visit clients at the Northwest Detention Center in Tacoma. “Without DACA, that would be particularly nerve-wracking.”
He would still be able to practice law. He received his law license in California, where the state Supreme Court ruled in 2014 that undocumented immigrants can practice as long as they are self-employed, without need of a work permit. The license allows him to practice in federal immigration court here, too, but that doesn’t solve the problem of his employment.
Cortes said he’s been talking with the owner of his firm. “We have to make sure we’re above board,” he said.
While some employers might be tempted to keep Dreamers in their jobs, those who do so could face a civil fine of up to $2,000 per person, according to Adams.
Still, Cortes wonders whether there is some creative solution.
Alejandra Pérez, a DACA beneficiary who works for an education nonprofit, is thinking along similar lines as she contemplates how she might stay in her job. “Undocumented people can own their own business,” she said.
Yet she said she knows many people might lose their jobs if DACA ends. “We are losing the stability we’ve been getting for the last five years,” she said.
Inslee also called attention to college students who might lose financial aid. DACA authorization is one way undocumented students can access state aid under Washington’s version of a Dream Act, passed in 2014.
They can also receive aid if they graduated from a Washington high school after living in the state for three years, according to Becky Thompson, director of student financial assistance at the Washington Student Achievement Council.
The possible demise of DACA has immigrant advocates rethinking their strategy and focus. Legal arguments are well and good, said Barón, but he considers legislation the best way forward.
The White House seems to agree. The spokeswoman said only Congress can legislate a permanent fix for DACA recipients.
Barón, though, said he wanted to see Congress take up larger issues, like creating a broad path to citizenship for those who are undocumented, and he predicted there would be new political pressure to make it happen.
“This is beyond DACA,” agreed Pérez, who is an organizer with the Washington Dream Coalition.
Indeed, she and another DACA recipient and Washington Dream Coalition organizer, Cinthia Illan-Vazquez, said they didn’t even want to be called Dreamers. Illan-Vazquez said the term implied they were somehow more deserving than others without legal status. Instead, they said they wanted to be known simply as “undocumented.”