On Thursday evening last week, as members of Congress prepared for the
government shutdown, Trump Administration lawyers at the Department of
Justice were filing a rare petition before the Supreme Court. They were
challenging the injunction of a federal judge in
California named William Alsup, who, on January 9th, halted the Trump
Administration’s cancellation of Deferred Action for Childhood
Arrivals.
Rather than appeal to the liberal Ninth Circuit for an immediate stay,
which would have been standard practice, Justice Department lawyers were
trying to circumvent judges they viewed as hostile. The Administration
clearly hopes that the Supreme Court will reinstate President Trump’s DACA decision, but the Justices won’t hear arguments in the case until
mid-February, and, even then, it’s likely that they will send the case
back to the appellate court to be adjudicated. For now, intentionally or
not, the Administration’s unorthodox legal strategy gives DACA recipients a chance to try to buy themselves some time.

Under the terms of Alsup’s injunction, anyone who had DACA when Trump
rescinded it, in September, can reapply to renew his or her status,
which expires after two years. With congressional negotiations on DACA deadlocked, and the President now
embracing the views of anti-immigrant extremists in the White House and Congress,
Dreamers have been reapplying in recent days. One of them is Luis
Cortes, a twenty-nine-year-old DACA recipient who came to the United
States from Mexico when he was a year old. Cortes lives in Washington
State, where he works as an immigration lawyer. Many of his clients also
have DACA, and he’s advising them to move fast. “Reapply even if your DACA is good for a while, because you can squeeze out a few extra
months,” he said that he tells them. “Do it while you still can.”

DACA doesn’t just mean that its recipients have certain protections
against deportation; it also allows them to work legally. When
Trump cancelled DACA, last fall, he set a series of deadlines to phase
the program out. The first one, which came in early October, left
twenty-two thousand Dreamers in limbo. Overnight, many of them lost
their
jobs.
After March 5th, which is the final deadline, hundreds of thousands of
other DACA recipients will no longer be able to renew their status,
either. Every day, more than a hundred DACA recipients are losing their
coverage, and, come March, that number will surge. Cortes’s status
expires next year. If he reapplies now, and his renewal application is
granted, per Alsup’s order, he can restart the clock for another
two years.

Still, some of Cortes’s clients remain skeptical. “A lot of people have
new addresses that they’d have to submit in the new DACA application.
They’re not sure about doing it,” Cortes told me. “ICE”—Immigration and Customs Enforcement—“is coming after a
lot of people. So some people are saying, ‘I don’t want to submit
documents with my new information.’ ” Given the unpredictability of the
Trump Administration, others don’t trust the government to actually
process their applications, which are costly to file, especially now
that many are losing their jobs. Cortes is sympathetic to all of these
concerns, but he doesn’t see any other options for DACA recipients. “If
you don’t reapply now, you might not get anything,” he said.

Alsup’s order is a lifeline of sorts—at least until
higher-ranking judges decide that it isn’t. Cortes happens to be one of
the reasons why the ruling exists in the first place. This past fall,
several different groups—including the University of California Board of
Regents, three states, a city, and a county—sued the Trump
Administration for cancelling DACA without duly considering the
consequences for its recipients. Mixed among the larger institutional
plaintiffs were six DACA recipients who alleged specific harms stemming
from the Administration’s decision. They were lawyers and teachers,
medical and law students, all of whom will be frozen out of their
careers without DACA. Cortes is part of the legal team representing
them.

Immigrants’-rights advocates have had mixed feelings about the efficacy
of challenging the termination of DACA in court. Cortes concedes that he
shares some of them himself. By ending DACA, Trump, inadvertently,
created a political opportunity to pressure Congress to help Dreamers: a
clear majority of Americans want them to have a path to citizenship. The
day the Trump Administration cancelled DACA, Cortes told me, “We all
felt an urgency. This was the time to push for a broader legislative
fix.” Some worried that the lawsuits might diminish the momentum.

At the same time, Cortes has clients whose status has expired and whose
lives have been immediately upended without DACA. They need some sort of
legal relief. “As a lawyer, I see every day how people are losing DACA.
I can see how much they’re harmed. There’s a significant fear that’s
there,” he told me. “There are DACA recipients who are taking care of
their parents. They have more stable jobs because they can get Social
Security numbers. The whole family unit is suffering. Some of them have
committed to mortgages. They have siblings or kids.”

In testimony before the Senate last week, the new head of the Department
of Homeland Security, Kirstjen Nielsen, told lawmakers that, even in the
absence of a deal on Dreamers, DACA recipients should not fear
deportation. Nielsen reiterated the point in a recent TV appearance on
CBS.
“If you are a DACA [recipient] that’s compliant with your
registration, meaning you haven’t committed a crime,” she said, “you’re
not a priority of enforcement for ICE should the program end.”

These reassurances were disingenuous, according to Cortes and other
advocates. Through aggressive enforcement, the Trump Administration has
already tried to undercut the protections afforded by DACA. One of the
first things the Administration did, last winter, was eliminate all
prior guidelines for how ICE officers decide whom to pursue for
deportation. As a result, arrests increased by forty per cent over all,
and a significant number of those targeted for deportation hadn’t
committed any crimes. Under Trump, ICE officers are
unfettered like never before in choosing whom to arrest. Both
before and
after the President cancelled DACA, the program’s recipients have been landing
in ICE custody; once they’re there, it’s exceedingly hard to avoid
deportation.

Cortes knows firsthand what that looks like. Last year, he started
representing a DACA recipient named Daniel
Ramirez,
a twenty-three-year-old with an infant son and no criminal record, who
was picked up when ICE officers arrived at his home one morning to
arrest his father. They took Ramirez into custody as well, apparently in
error; when ICE officers discovered that they had made a mistake, rather
than release him they tried to claim that a tattoo he had on his arm was
proof that he belonged to a gang. Ramirez denied this, and Cortes
rebutted the insinuations with expert testimony in court, but it didn’t
matter. The allegations of criminal activity were enough for the
Department of Homeland Security to summarily strip Ramirez of his DACA status. When a federal judge eventually released Ramirez on bond, after
he spent a month in immigration detention, he was left without DACA. Now
Ramirez is stuck in deportation proceedings.

“One of the biggest changes I’ve seen with the Trump Administration are
individuals who are charged with crimes and who get detained or deported
without the charge ever being cleared up,” Cortes told me. To him, this
only underscores the need for Congress to act. Cortes called the legal
battles over DACA “a Band-Aid on a badly bleeding gash.” “We need a
permanent fix,” he told me, referring to new legislation from Congress.
“Daniel Ramirez represents a cross-section of the average Dreamer. He’s
stuck. So we’re also looking for temporary answers, anything that will
keep him here with his son—and keep other young parents here with their
kids.”