//  5/4/17  //  Commentary

Trump’s first 100 days in the office have been …. not great. In the first 100 days, he walked back his promise that Mexico would pay for the wall to now be a promise that “eventually, but at a later date” Mexico would pay “in some form” for the wall. (Would Cheerios work?) Trump also walked back his promise (within a day of repeating it) that he would withdraw from NAFTA. His first 100 days have also put our country on the verge of several constitutional embarrassments and disasters, if not crises.

But to my mind one of the most heartbreaking disasters of Trump’s first 100 days is what those 100 days have done to the so-called “DREAM-ers,” the group of young immigrants who are part of the Deferred Action for Childhood Arrivals program (DACA). DACA identified a group of especially promising young immigrants and subjected them to rigorous background checks to determine, among other things, that they posed no risk to public safety. DACA then promised those individuals, who were brought to the country as children, that they would not be deported so long as they abided by the terms of DACA (which required them not to commit a subsequent crime, among other things). Many of these individuals were also granted authorization to work in the United States.

The First 100 Days of DACA Under A Trump Administration

In the first 100 days of Trump’s presidency, several young DREAM-ers have been arrested and detained by officers in Trump’s Bureau of Immigration and Customs Enforcement. One DREAM-er has been deported, and Trump’s officers are trying to deport several more.  Those individuals include young people who have committed no crime, and who have done absolutely nothing to suggest that they are anything close to a risk to public safety.

Among the individuals that the Trump administration is trying to deport is Daniel Ramirez Medina, a young father and two-time DACA recipient. The government has attempted, at various points, to justify its treatment of Daniel on the ground that he has a tattoo and thus might be a gang member. The tattoo is of a nautical symbol and includes the name of the place where Daniel was born. If the administration believes that nautical symbols are gang signs, I assume that they are rounding up everyone who is wearing Vineyard Vines clothing. Or better yet, that they are monitoring Martha’s Vineyard for people wearing clothing with sailing motifs.

While the administration has kind of walked away from the suggestion that Daniel himself is part of a gang, it has also justified the decision to arrest, detain, and deport Daniel on the ground that Daniel knew gang members at some point in his life. It is news to me that our system of government operates under a principle of guilt by association. I went to high school with people who were convicted of counterfeiting, and for doing drugs. Am I suspected of those crimes too?

Despite these alarming facts (and there is no alternative version of them), Trump maintains that he will treat the DREAM-ers with heart. Early on in his campaign and presidency, he described the question of what to do with DACA (whether to continue it, suspend it, or honor it) as a “tough issue” for him.

In fact, just over a week ago, Trump said with a straight face that DREAM-ers should “rest easy” about his immigration policies. He explained that he is “not after the dreamers, we are after the criminals.” “[T]hat is our policy.” Last weekend, on CNN, DHS Secretary Kelly repeated the President’s views about DACA and the DREAM-ers: “We’re [DHS] not targeting them [the DREAM-ers]. The President is obviously sympathetic.” Obviously, he says—despite the arrests, detentions, and deportations.

Why Those First 100 Days Are So Devastating To DACA

Baloney. It doesn’t matter much that ICE isn’t actively scouring the United States for DREAM-ers. (ICE’s treatment of Daniela Vargas  raises questions about whether ICE is in fact targeting DREAM-ers. ICE agents went back to find Vargas and haul her in as soon as they learned that her DACA renewal was pending.)

The thing that matters is that ICE isn’t honoring the promise that was made to DREAM-ers, which is also the promise that defines DACA and the government’s understanding and implementation of DACA. The promise was that DREAM-ers can stay, and that DREAM-ers’ immigration status would not be held against them unless they do not adhere to DACA's terms. DACA directs ICE and CBP agents who “encounter[]” DACA beneficiaries to “immediately …. prevent” them “from being placed into removal proceedings or removed.” It states that “an individual who has received deferred action is authorized … to be present in the United States.” And it declares that such an individual “is therefore considered by DHS [the agency in which ICE and CBP are housed] to be lawfully present during the period deferred action is in effect.”

The government, however, has offered precisely zero evidence that Daniel is a threat to public safety.  (The government repeatedly concluded he was not when it granted Daniel DACA.)  Nor has the government offered any such evidence about Daniela, the DREAM-er who plays the trumpet and wants to become a math teacher.

If Trump and his administration do not honor DACA's explicit and implicit promises, Trump and his administration have destroyed the DACA program. A DACA in which ICE agents can round up DACA recipients based on piddly nothings and DACA recipients’ immigration status is not DACA at all.

Attorney General Sessions appeared to embrace ICE's destruction of DACA when he responded to reports that a DREAM-er had been deported. Sessions said:

Everybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported — well, they are.

Add to that comment some other purported policies of this administration. The administration’s formal enforcement immigration enforcement memos do not rescind DACA. But the San Francisco Chronicle reported that Homeland Security Investigations (HSI), a division of ICE, “is now mandated to make collateral immigration arrests of non-targeted individuals found at the scene of operations.” In plain English: If HSI conducts a sweep for one of the “criminals” ICE is purportedly targeting, and HSI finds instead (or in addition) someone who just happens to be undocumented, HSI must arrest that person as well. Are DREAM-ers and DACA exempt from that rule?  DHS and ICE should make that clear.

The Chronicle also notes that merely using HSI to conduct these kinds of immigration arrests greatly increases the reach of the administration’s enforcement powers. Until now HSI agents “work[ed] separately from” ICE and have “generally avoided immigration-only arrests during operations,” at least in California. HSI is the largest investigative arm of DHS—it has around 6200 agents, compared to the 5800 deportation officers within ICE.

If Sessions’ statement is in fact the Trump administration’s policy toward the DREAM-ers, the dream is over. DACA, as implemented and structured by the government, only works if the government abides by the promises and representations that it made to DACA recipients. As Mark Stern has explained at Slate, if DACA allowed ICE to deport DREAM-ers based only on their immigration status (i.e., for reasons other than their violation of DACA), “[i]t would render the program purposeless at best, dangerous at worst.” To apply for DACA, DACA recipients not only identify themselves as undocumented, they also turn over a great deal of personal information about themselves to the government—the entity that could deport them.

DACA also provides work authorization to eligible DACA recipients. Through that, and other promises and representations the government made (such as highlighting particular DREAM-ers and their achievements), the government has communicated to DREAM-ers that they could come out of the shadows. It has telegraphed to the DREAM-ers that they could and should avail themselves of the variety of public benefits and services that people with legal status take for granted every day—drivers licenses, employment opportunities, health insurance, educational scholarships. And you know what? The DREAM-ers did that. DACA allowed the DREAM-ers to “obtain work permits, attend universities, open bank accounts, start businesses, buy homes and cars, and—for Luis Cortes Romero, [one of my] co-counsel in the Ramirez case—graduate from law school and pass the bar.”

But DACA only works if the government follows certain procedures before rescinding those promises and representations. Why else would DREAM-ers go through the DACA application process, if they’re treated no differently than every other person without “lawful status” in the United States? Why would they rely on the government’s representations that they could participate in a variety of government programs and interact with government officials, all while having identified themselves as undocumented, if those officials could yank them up at any time? It doesn’t make much sense.

As my co-counsel Ted Boutrous and Jesse Gabriel wrote in an op-ed in the Wall Street Journal: “[T]he government, after coaxing these young people out of the shadows, deeming them 'lawfully present,' and then promising not to arrest, detain or deport them if they follow the rules, cannot turn around and do just that.”

Tomorrow, I’ll discuss why Trump is responsible for all of this mess. Stay tuned!

Disclosure: I am among the counsel to Daniel Ramirez Medina, the DACA recipient whom the Trump administration arrested and detained and is trying to deport. For an update about what is happening in the case, read Ted Boutrous and Jesse Gabriel’s piece in the Wall Street Journal. Further disclosure: Few things make my blood boil as much as this administration’s treatment of the DREAM-ers.


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