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Symposium: Potential hardships to DREAMers can no longer be ignored

Craig Newby and Jeffrey Conner are deputy solicitors general for the State of Nevada, which filed an amicus brief on behalf of five states in support of the respondents in University of Department of Homeland Security v. Regents of the University of CaliforniaTrump v. NAACP and Wolf v. Vidal.

Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!

President Donald Trump, September 14, 2017

In Department of Homeland Security v. Regents of Univ. of Cal., the Supreme Court agreed with Trump’s sentiment, rejecting the Department of Homeland Security’s efforts to rescind the Deferred Action for Childhood Arrivals program, at least for now. The court has paused the undue uncertainty in the lives of more than 669,000 DACA recipients, including more than 12,000 Nevadans, who have only known the United States as their home. Moving forward, any efforts to rescind DACA must at least consider the hardship to DACA recipients.

Nevada, as a smaller, rapidly growing state, benefits from DACA recipients in significant, calculable ways. The court has now ensured that Nevada and its DACA recipients will not be needlessly harmed by the threat of the program’s rescission without due consideration of these benefits, three categories of which were recognized in Regents.

First, Nevada’s economy benefits from DACA. The program provides recipients with the ability to apply for work authorizations, which allow them to work legally in the United States. The rescission of DACA nationwide could lead to the loss of work authorization for 915 DACA recipients every day from the time it goes into effect. Businesses will face an estimated $6.3 billion in costs to replace employees if DACA is rescinded. DACA recipients in Nevada exercised an estimated $261.8 million in spending power in 2015, and paid an estimated $19.9 million in state and local taxes.

Second, Nevada benefits from the financial security DACA recipients can now provide to their families. Nationwide, 73 percent of DACA grantees live with an American citizen spouse, child or sibling. In Nevada, 27,600 individuals live in mixed-status households with an estimated 4,600 U.S.-born children of DACA recipients. The Supreme Court acknowledged that there are approximately 200,000 U.S.-born children of DACA grantees at risk from rescission. Losing DACA status would threaten to throw Nevadan families into chaos, financial and otherwise. Loss of income and health insurance for DACA recipients would burden the states’ public health and social safety net programs, a particularly harmful outcome during the current COVID-19 pandemic.

Third, Nevada’s public colleges and universities benefit tremendously from the participation of DACA grantees, who, as both students and valued employees, contribute tuition revenue, skills and knowledge, while enhancing the educational experience for all students through exposure to more diverse ideas and viewpoints. In response to the decision to rescind DACA, University of Nevada, Reno President Marc Johnson wrote in a September 1, 2017 statement to faculty, staff and students:

Since the Deferred Action for Childhood Arrivals (DACA) program was started in 2012, we have witnessed the critical benefits of this program for our students, and the highly positive impacts on our institution and community. … We will continue to embrace our mission and support the members of our diverse groups, who are a valued and critical part of our campus community.

Recognizing these successes, leaders of over 600 colleges and universities, including Nevada’s five largest public colleges and universities, joined in a statement describing the “critical benefits” of DACA to their educational communities. Describing the continuation of DACA as a “moral imperative and a national necessity,” they wrote: “America needs talent – and these students, who have been raised and educated in the United States, are already part of our national communities and economies.” Nationwide, one study found that 94 percent of DACA grantees currently in school report that deferred action has allowed them to pursue educational opportunities otherwise unavailable to them. According to that study, 45 percent of DACA recipients were currently in school, and of that group, more than 70 percent were pursuing a bachelor’s degree or higher.

In short, Nevada’s DACA recipients, in reliance on the program, have provided great benefits to the state. These obvious reliance interests warrant due consideration when contemplating DACA rescission. The Supreme Court set forth these types of reliance interests as the foundation of its opinion in Regents.

DHS ignored DACA recipients’ reliance interests when deciding to rescind the program. The Supreme Court rejected this willful ignorance: “Making that difficult decision [to weigh reliance interests] was the agency’s job, but the agency failed to do it.” The agency’s  “fail[ure] to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients,” the court said, “raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

DACA recipients are students and teachers, military service members, law enforcement officers, fire fighters, health care workers, child and elder care workers, and treasured friends and neighbors. Allowing these individuals to participate in American society generates significant positive impacts for both states and the country as a whole. We recognize not only the economic value of these individuals, but also the myriad social and cultural benefits that result from permitting them to participate fully in our communities.

Moving forward, the Supreme Court’s decision prevents DHS from rescinding DACA without due consideration of DACA recipients’ reliance interests and the benefits they have provided Nevada, the country and themselves through hard work, all for the only country they have known. While Congress continues to search for a permanent, consensus solution to this and other immigration issues, Thursday’s opinion allows Congress to do so without using DACA recipients as leverage. Instead, it allows people like Astrid Silva, a Nevadan who was pulled across the Rio Grande with her mother carrying a Ken doll, to have some security while benefitting Nevada and the country. The achievement of goals and dreams by DACA recipients like Silva is among the most important intangible benefits of DACA.

Under these circumstances, the Supreme Court correctly rejected the government’s attempt at “cutting corners.” For now, at least, DACA recipients can focus on strengthening our communities by building better lives for themselves.

Recommended Citation: Craig Newby and Jeffrey Conner, Symposium: Potential hardships to DREAMers can no longer be ignored, SCOTUSblog (Jun. 19, 2020, 4:34 PM),