By Josh Lederman and Julia Ainsley -
NBC News
The White House is preparing to take steps to protect hundreds of thousands of Dreamers, people close to the White House revealed to our sister network, NBC News.
The Biden government is preparing for a possible court defeat that could end the Deferred Action for Childhood Arrivals (DACA) program, which has been in existence for a decade.
Planning has intensified in recent days before the US 5th Circuit Court of Appeals makes a decision on the show's future, possibly in the next few days.
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At stake is the ability of more than 600,000 people protected by the program, known as DACA, to continue living and working in the United States without fear of deportation.
The panel of conservative judges will almost certainly rule that DACA is illegal.
Although the Biden administration is likely to appeal the order, the Supreme Court has indicated it agrees with a 5th Circuit ruling ending the Obama-era program.
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With few options to act on its own, the Biden administration is preparing measures that could continue to protect from deportation - at least temporarily - immigrants who were brought to the United States as children, but who lack legal status and who are they were granted protection under the DACA program.
The order would require Immigration and Customs Enforcement (ICE) not to prioritize the deportation of DACA recipients and refrain from deporting them if they are not considered a threat to public or national safety.
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But the order could easily be revoked by another Administration.
When the Supreme Court ruled in 2020 to prevent the Trump Administration from ending DACA, the majority opinion, written by Chief Justice John Roberts, argued that the former President's Administration had acted improperly to end the program. .
Legal experts believe the now more conservative court will eventually rule that DACA itself is illegal, particularly because it allows work authorization for undocumented migrants.
Without congressional action, the program's work authorizations will almost certainly end.
Immigration experts say thousands could abruptly lose their ability to make a living in the United States.
Immigrant rights activists take part in a demonstration outside the US Supreme Court in Washington, DC, on November 12, 2019. Mandel Ngan / AFP via Getty Images
“DACA has been threatened in the past, but the current case before the 5th Circuit Court is the most serious threat to date,” said Todd Schulte, the president and CEO of FWD.US, a bipartisan political organization. advocating for progressive immigration reform.
“If Congress does not pass legislation this year, nearly 700,000 DACA recipients are likely to be at risk of being forced out of their jobs and subjected to the threat of deportation.
If the 5th Circuit rules against DACA, 1,000 current DACA recipients will be at risk of losing their legal ability to work each business day for the next 24 months."
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The planning for a potential court defeat echoes a strategy the administration tried to use after the Supreme Court overturned Roe v.
Wade three months ago.
After that decision, President Joe Biden signed an executive order and federal agencies took steps to try to preserve abortion access where possible, though some abortion rights activists still criticized the White House for appearing unprepared.
In the case of DACA, a disappointing ruling for supporters seems more likely than not, immigration advocates said.
Not only has the 5th Circuit ruled unfavorably toward the Biden administration's position before in a related case, but any decision is also likely to be appealed to the Supreme Court, where the conservative majority is expected to rule against DACA.
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The Biden White House has repeatedly urged lawmakers to act to protect DACA recipients, commonly referred to as Dreamers, based on the never-passed proposals in Congress called the DREAM Act, and to review immigration laws. more broadly, but there are no signs that Congress is going to take up the matter seriously in the near future.
Senate Judiciary Committee Chairman Dick Durbin, a Democrat, said Tuesday that he recently spoke with Homeland Security Secretary Alejandro Mayorkas about the upcoming DACA decision.
He did not say what Congress was prepared to do if DACA ends.
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“I think national sentiment is strong in favor of the 'Dreamers' and DACA protégés.
And if something terrible comes out of the 5th Circuit, I think it could be an issue in November,” Durbin said, referring to the November midterm elections.
Sen. Kyrsten Sinema, an Arizona Democrat who has often gone against her party on key legislative proposals, said she would like to focus on immigration reform after the November election.
“The reality is that we have to address both our security needs and our manpower needs,” he said Monday in a speech at the McConnell Center.
Referring to Sen. John Cornyn, R-Texas, he added: "And I hope I can partner with my friend John and deliver something in the next few months or a couple of years."
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In 2021, Sinema and Cornyn had jointly introduced a bipartisan immigration bill in response to the surge of migrants at the border.
Equally frustrated by immigration inaction in Congress, former President Barack Obama created the DACA program in 2012 through executive action to protect people who were brought to the United States without citizenship or residency as children.
The show has been the subject of intense court battles ever since, leaving participants in a near-constant state of legal limbo.
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Since last year, the program has been closed to new applicants after a court ruling that DACA was illegal, but continued protection for existing recipients while the case played out in court.
This year, the Biden administration issued new regulations to strengthen DACA's legal underpinnings and improve its chances of surviving in court, though it's unclear if that will be enough to save the program.
A White House spokesman did not respond to requests for comment.