Senate GOP Bill Doesn’t Extend DACA. It Guts It

by David Bier

This weekend, President Trump promised to an “extension” of DACA for the “700,000 DACA recipients brought here unlawfully by their parents at a young age many years ago.” But the Senate bill that Senate Majority Leader Mitch McConnell introduced to implement his deal does not extend DACA but rather replaces it with a totally different program that will exclude untold thousands of Dreamers who would have been eligible under DACA. It is important to remember that all of these requirements are for less than 3 years of relief from deportation and work authorization, not a pathway to citizenship.

Here is a list of some of the changes:

1. Requires Dreamers to reapply: P. 1235 requires Dreamers already in good standing in DACA to reapply for status, even though DACA would have allowed them simply to renew their status without refiling all of their paperwork and evidence. This requirement is a substantial burden, and most applicants will end up having to hire immigration attorneys to fulfill it.
2. Much higher evidentiary burden: P. 1235 increases the evidentiary standard for Dreamers to prove their eligibility to receive DACA from a “preponderance of the evidence” to “clear and convincing.” The only higher standard of proof in the law is “beyond a reasonable doubt.” People win multi-million judgments based on the preponderance of the evidence standard. Clear and convincing is often used for cases like withdrawing life support. In the immigration context, USCIS explains that preponderance of the evidence is usually the standard—meaning that “even if the director has some doubt as to the truth,” he should approve “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not.’” Clear and convincing is used rarely for cases like “to rebut the presumption of a prior fraudulent marriage” (i.e. for applicants the government has reason to be suspicious of). Dreamers proving that they entered before June 2007 or that they resided continuously, for example, just became much more difficult under this legislation.
3. Imposes a Monetary Fine/Doubles Application Cost: DACA, the Dream Act, and other proposals to legalize Dreamers have usually left off the monetary fine for being in the country illegally that proposals to legalize other immigrants have customarily had. This is because no one—including Trump—blames Dreamers for being in the country illegally. They were brought here as children. Yet this bill does contain a fine or penalty but rebrands it as a $500 “security fee” (p. 1243). This fine comes on top of the normal fees for processing the application, and it essentially doubles the cost of the currently $495 application. According to the Migration Policy Institute’s analysis of why eligible Dreamers didn’t apply for DACA, not having $500 cash was the number 1 reason. Anecdotes from Dreamers themselves support this.
4. “Public charge” rule: P. 1238 applies the public charge ground of inadmissibility in INA 212(a)(4) to Dreamers—something DACA did not require. While DACA recipients are currently ineligible, and would remain ineligible under this bill, for almost all federal benefits, the Trump administration’s pending public charge rule would ban anyone who is even 5 percent dependent on any level of government, even state or local aid, from receiving legal status. This could include numerous Dreamers in states such as California and New York, which offer state benefits to Dreamers. Dreamers in DACA have grown up in America since a very young age and have lived in the country for over a decade. They are Americans. Treating them as if they are new immigrants does not represent the view of most Americans.
5. Minimum income requirement: P. 1239 would further require that Dreamers prove—again by clear and convincing evidence—that, unless they are a student, they can maintain an income of at least 125 percent of the poverty level during their time in the United States. DACA had no such requirement, and it would result in banning numerous Dreamers currently in DACA.
6. Pay back legally-obtained tax credits: P. 1239 requires Dreamers to pay to the U.S. Treasury the value of any legally-obtained tax credits that they have received. Not only is this provision not in DACA, it is totally unprecedented in immigration law and would massively increase the cost for many applicants, particularly those with children.
7. Excludes Dreamers who ever claimed to be U.S. citizens: Unlike DACA, P. 1238 also applies the ground of inadmissibility in INA 212(a)(6)(C) for those Dreamers who ever claimed to be a U.S. citizen. This is an exceptionally common phenomenon because many Dreamers don’t ever realize that they are here illegally until they claim otherwise.
8. Excludes Dreamers with removal orders: Unlike DACA, P. 1238-9 would ban Dreamers who are in the country illegally due to a prior order of removal. Given that the whole point of DACA and similar programs are to give people here illegally legal status, this provision makes little sense and is solely designed to keep out Dreamers.
9. Excludes Dreamers not in DACA: Nearly half of all Dreamers have dropped out of DACA or never applied in the first place, possibly due to fear of what Presidents Trump or Obama would do with their information or for costs or other reasons. Moreover, other Dreamers “age-in” to the program when they turn 15 (younger immigrants cannot apply). P. 1239 makes it clear that anyone not currently in DACA cannot apply—another huge change from the DACA program.
10. Keeps Dreamers from getting permanent residence: Illegal immigrants who also entered illegally cannot adjust their status to legal permanent residence even if they are eligible due to (typically) a marriage to a U.S. citizen. They need to register a legal entry first. DACA allowed them to travel and reenter, which permitted tens of thousands to receive legal permanent residence. P. 1252 bars this practice by deeming such entries not a legal “admission” for purposes of adjusting status.
11. Dreamers cannot renew status: P. 1240 grants a 3-year status that cannot ever be renewed. This is a huge departure from DACA, which—despite giving just a 2-year status—has allowed renewals for 7 years already.

These are just some of the many changes that the bill makes to the DACA program. Commentators should not describe this bill as “extending DACA” or even extending that status of DACA recipients. This is an entirely new program and an entirely new status.