This comment will continue my previous one regarding the Trump-Miller administration's DACA termination, including, very arguably, misleading the Supreme Court about its intention to deport up to 800,000 Dreamers. See my December 26, 2019 Immigration Daily comment.

As I discussed in that earlier comment, from the time that Trump terminated DACA up until now, the Trump administration had been content to let the public - and the federal courts - assume that the only issue involved was that DACA registrants would no longer be able to receive work permission and other side benefits. However, deportation itself was not on the table, as far as the administration was concerned.

This is the assumption that Chief Justice Roberts himself enunciated during oral argument on DACA termination in November, 2019 - without contradiction from the Trump administration lawyers. This assumption has now been shown to have been false by recent ICE action in reopening previously closed deportation cases against DACA registrants.

However, instead of dealing directly with the Trump administration's apparent lack of candor, not to mention its appalling inhumanity, in taking steps to deport up to 800,000 Dreamers, an argument is now being put forward to the effect that if any Dreamers are faced with deportation, that will somehow be the fault of President Obama for establishing the DACA program in the first place, rather than that of Donald Trump for canceling the program.

In other words, if Dreamers are deported, we should blame the president who tried to protect them, not the president who is trying to deport them. This is an argument that would make George Orwell proud if he were alive today.

The basis of this argument appears to be that when President Obama established DACA as a matter of prosecutorial discretion, he should have realized that a future president with different views about immigration policy [such as, for example, what type of immigrants are welcome in America and which part of the world they should come from - i.e. "Countries like Norway" as opposed to "shithole countries" of Africa, the Caribbean and Central America] might just as easily cancel the program. This would leave the DACA registrants in limbo and exposed to deportation, as they arguably are now.


In order to understand the fallacy behind this argument, we should look at the history of the DACA program and how it came into existence. As I will show in the third and final part of this three-part series, from the beginning, DACA was only intended to be a substitute - a temporary stopgap - to make up for the failure of Congress to pass a bill that would have granted relief to the Dreamers on humanitarian grounds. This failure was very arguably due to opposition from Congressional Republicans on racial grounds. See, CNN, (11-1-2010):

https://www.cnn.com/2010/OPINION/11/01/altschuler.gop.dream.act/index.html

As I will also show in my upcoming final part of this series, prosecutorial discretion in immigration enforcement has a long history, having been used at least 20 times previously to DACA.

https://immigrationforum.org/article/deferred-action-basics/

To be continued in Part 3.

Roger Algase
Attorney at Law