(WASHINGTON) — More than 700,000 young immigrants, who came of age in America but have lacked permanent legal status, look to the U.S. Supreme Court on Tuesday to uphold a program protecting them from deportation to countries they’ve never truly known.
The justices will hear oral arguments in a case challenging President Donald Trump’s controversial 2017 decision to end Deferred Action for Childhood Arrivals, or DACA, which grants qualified immigrants temporary residency and work privileges.
The outcome could determine whether those young people, many of whom have registered with the government since 2012, may continue living and working legally in the U.S. or could be subject to removal.
“I grew up here. This is the only place I know. I have done nothing wrong. I just want a normal life like everyone else,” said Carolina Fung Feng, 30, a Costa Rican immigrant and DACA recipient, who came to New York when she was 12 years old.
Feng is among hundreds of DACA recipients and advocates expected to demonstrate outside the court to draw attention to their case, which has won bipartisan support from hundreds of U.S. business groups, churches, law enforcement organizations and educational institutions.
“I feel like it’s a 50-50 chance. The court could go either way,” Feng said. “But even if the decision is not favorable, we will continue to fight.”
DACA — which was created by President Barack Obama after Congress failed to enact legislation — allows immigrants who came to the U.S. under the age of 16, without a criminal record and who have completed or are attending school, to pay a fee, register with the government and receive a temporary waiver from deportation and ability to work.
Beginning last month, dozens of DACA recipients began marching on foot from New York City to Washington to attend oral arguments — a 230-mile trip which took two weeks to complete.
“Our members are looking to the justices to do the right thing, to uphold the three separate lower court decisions and to refuse to submit to the lawlessness of a president who wants them to do his dirty work,” said Greisa Martinez, a DACA recipient and deputy executive director of United We Dream, a grassroots advocacy group.
Trump moved to end the initiative in 2017, accusing his predecessor of abusing executive power to shield undocumented immigrants when Congress had failed to act legislatively.
Following several legal challenges, federal courts put Trump’s phase-out of the program on hold, pending appeals. No new applications are being accepted, but the Department of Homeland Security is processing renewals for immigrants already in the program.
The Trump Administration has approved more than 373,000 renewal requests since 2017.
“We don’t know how the court’s going to rule. The court could ask DHS to put pens down and stop reviewing applications,” said Leezia Dhalla, a Canadian-born DACA recipient who immigrated to Texas in 1996 and graduated from Northwestern University. “There’s also a chance the justices could reopen DACA in its original form. For now, we’re telling people to get their renewals in.”
Antonio Alarcon, whose parents brought him to the U.S. from Mexico when he was 10, is one of the DACA recipient plaintiffs in the case before the Supreme Court this week.
“Every day we contribute to the country, and I hope the court will see the human aspect of DACA,” Alarcon said of his message to the justices.
Seven years after the program was created, many of the DACA recipients have become deeply intertwined in American society and advocates say their families include 256,000 U.S. citizen children.
“This is an enormously important, stupid case,” said Tom Goldstein, a constitutional lawyer and founder of SCOTUSblog. “Enormously important for the individuals involved and immigration policy, but stupid because if Obama can create the program then Trump can withdraw it. But the issue is accountability.”
The case centers on the rationale the Trump administration gave for ending the program and whether that decision was unlawfully arbitrary.
In September 2017, then-acting Secretary of Homeland Security Elaine Duke issued the order rescinding DACA because she said that the administration had deemed it “unconstitutional” and “effectuated … without proper statutory authority.”
Several federal courts found that reasoning “arbitrary and capricious” in violation of the federal Administrative Procedures Act. In one case challenging DACA, however, a federal judge has said the same of Obama’s decision in creating the program in the first place.
“All they have said is that they did it because they had to, because the DACA program was unlawful, despite the fact that no court anywhere had found it unlawful,” said Karen Tumlin, director of the Justice Action Center and an attorney involved with one of the cases before the court.
The Trump administration argues that the program was created by executive authority and can reasonably be discontinued at the president’s discretion. They say the courts can’t even review the decision.
“There’s no question the initial justification they gave was an attempt not to give a justification,” said Omar Jadwat, an attorney with the American Civil Liberties Union. “None of the things they’re now saying did they say when they terminated the program.”
Some legal experts think that in taking the case — without a notable split among lower courts — suggests that the Supreme Court is poised to reverse those lower court decisions.
“There’s a pretty good chance President Trump will prevail and the rationale will be significant,” said John Blackman, an associate law professor at South Texas College of Law.
“Even if the court upholds recision, however, that doesn’t mean people are getting removed right away. The initial policy called for a six-month phase-out,” he said. “If we count six months from the beginning of July, (when a court opinion is expected), that puts us basically into January 2021 which is after the election.”
“So the outcome of the 2020 election will largely dictate the fate of the ‘Dreamers,'” Blackman surmised.
Trump has called the DACA recipients, also known as “Dreamers,” based on never-passed proposals in Congress called the DREAM Act, “absolutely incredible kids” and promised that “we’ll take care of everybody,” but the administration has not proposed a solution.
Earlier this year, the Democrat-controlled U.S. House of Representatives passed a measure that would establish a pathway to citizenship for 2.5 million DACA recipients, including those affected by Trump’s cancellation of the program. The White House said Trump would veto it.
For DACA recipients, the uncertainty of the outcome of the Supreme Court case means renewed anxiety about their futures in the only country they’ve known.
“I carry a poem that my grandmother wrote: ‘Speak because it’s your life, speak because you can,'” said Sana A., a Pakistani immigrant and DACA recipient who did not want to give her last name in order to protect her identity.
“DACA has enabled me to speak in so many more ways,” she said.
The Supreme Court is expected to deliver it’s decision in the case by the end of June 2020.
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