The Future of DACA

For years, DACA recipients and those eligible for DACA have lived in a state of precariousness as we wait for the future of DACA to be decided by the increasingly conservative courts. 

This Fall, on September 13, Judge Hanen from the Southern District of Texas again found the DACA program to be unlawful, though his ruling kept the 2021 injunction in place, which means that, for now, a part of DACA remains intact. While this was a callous and preposterous decision, the fact is that it didn’t substantively change the outlook for DACA applicants in the near term. Current DACA recipients maintain their DACA and can renew it and request advance parole, but no initial applications for DACA will receive a decision. USCIS is blocked from deciding any pending and new applications for DACA due to the 2021 injunction, which means that people who no longer have DACA or who never had DACA in the first place are stuck until a court decision says otherwise.  

On November 10, 2023, the United States filed an appeal, and the case is now headed to the Fifth Circuit. Currently, there are no deadlines or hearings set yet. As we learn more, we will keep our community informed.  

So what should you do in the wake of all of this? 

We encourage all undocumented individuals, whether they have DACA or have applied for DACA, to speak to a trusted and experienced immigration attorney to see if they are eligible for any type of permanent status.  

ILD attorneys are encouraging all DACA recipients up for renewal to submit their applications on time, at least 6 months before the expiration date and up to a year before.

We are also encouraging anyone planning to travel on Advance Parole to do it now rather than later since we can’t predict exactly what lies ahead. 

And finally, we’re encouraging everyone to get politically involved to help move the needle for immigrants with unstable status. Join your campus chapter of United We Dream. If you can march, march for these rights. If you can vote, vote – in local, state, and national elections.  

The truth is that things don’t look great for the long-term future of DACA, but we’ve known this for quite some time. DACA was only ever meant to be temporary as we fought for something more comprehensive and stable. And that’s what activists, progressive lawmakers, and lobbyists are continuing to do: working to secure something beyond DACA, which, after all, only offers a temporary reprieve for its recipients. 

Follow ILD on Instagram and Twitter for more updates, including news on upcoming webinars where you can learn more and get your questions answered. 

Onward. We’re fighting for you and with you. 

The Cost of Administrative Delays

The US immigration system is mired in delays. For instance, Thousands of immigrant youth who have already been found eligible for Special Immigrant Juvenile Status are currently stuck in a many-year backlog, leaving them in an insecure state of protracted limbo. It is common for detained people who have had their bond approved to remain incarcerated for additional days, weeks, or even months while their loved ones jump through the inconsistent and needlessly complex hoops to secure their release. As of August, there was a 1.3 million case backlog in immigration courts, meaning millions of people face undue, unprecedented delays for their fates to be decided.  

Public systems are often laden with bureaucracy, but it cannot be overly stated just how cruel and life-altering the administrative delays in the US immigration system can be.  It’s not just that people are waiting for high-stakes decisions; people are often waiting months and years, at great personal cost, merely to have a chance for their case to be heard or to move its way through administrative sludge. 

A client whom we’ll call Miguel, for instance, has been in active deportation proceedings for nearly fifteen years. When he was thirteen years old, he made the terrible – and ultimately life-altering–decision to join a gang and take part in a robbery. “I regret that decision every day of my life,” he says. Miguel was sentenced to fifteen years in prison but only served four due to good behavior and for cooperating with law enforcement. He has not been arrested since. 

He is now a husband, a father, a stepfather, and a business owner, but the threat of deportation has been hovering above him for his entire adult life. If he’s sent back to Mexico, he very credibly fears that gang members there will retaliate against him for cooperating with law enforcement. And, because all deportation is a form of family separation, if forced back to Mexico, Miguel would be severed from the family he has built here. 

His court case has been delayed again and again, keeping Miguel in a state of limbo. He employs over a dozen people and has clients all throughout California. This is a feat of accomplishment under any circumstance, but even more so for Miguel: due to his pending removal proceedings, he must renew his work authorization each year, and thus, he can only get a driver’s license – something he needs for his job – after that approval takes place. Sometimes, there is a long lag, meaning that by the time he receives his authorization, he is only eligible for a few months of a driver’s license before starting the whole process again. He spends weeks each year in line, navigating the various bureaucratic systems–time not spent with his family, growing his business, or supporting his employees as a small business owner. 

A few years ago, the processing delays were so severe that he went without a work permit for many months, forcing him to shutter his business. His family got evicted from their house and had to move in with family members. All that he had worked for had crumbled because of some paperwork delays resulting from a bad decision he’d made – and paid for with prison time – over twenty years ago when he was just a boy. 

Recently, Miguel’s day in court finally came. He brought his family to testify on his behalf, all of them hoping that this would be the final round – that their nightmare of uncertainty would be over, “That we could finally know what the future holds,” his wife explained, “and move on in whatever direction we need to instead of just waiting and worrying.” They had to drive more than three hours to get to court, and the children missed a day of school. 

Miguel had a chance to share his story before the judge, as well as the regret he felt over his childhood choices, his fears of returning to Mexico, and the impact his deportation would have on his family, especially his children. 

“It would affect them physically, emotionally, psychologically–in every single way,” he said. His wife wouldn’t be able to pay for basic needs without his salary, and as for his children, “How do you explain it to them?” he said, breaking into tears. “That one day, I might just disappear?” 

“Why do you think it’s appropriate to burden a child with the information about your deportation proceedings?” was what the government attorney asked in response. 

The much fairer question is why the US government devotes so much time and resources to punishing immigrant families and terrorizing them with the threat of deportation and these lengthy, inhumane waits. 

“They treat immigrants like animals,” Miguel’s wife, a US citizen, said of the immigration system. “It’s like they make us into zombies.” Whenever they think they're safe, the threats rear their heads again as if returning from the dead. 

Due to court backlogs and a scheduling delay from the morning case, Miguel’s recent hearing had to be cut short. The case would proceed on another day, several months down the road; it might even need yet a third timeslot a few months after that. The entire family was brought to tears afterward. Despite the strength of his case and the soothing words of their ILD attorney, it felt like another long stretch of purgatory awaited them. 

“We just want to move on with our lives,” Miguel said through tears. “We just want to make a life.” 

Our team feels optimistic that Miguel’s removal order will be canceled due to the merits of his case. But, in the best-case scenario, that outcome is still months and months away. He is just one of the millions at the mercy of a system mired with delays. 

As wonky as the issue may sound, administrative delays are profound matters of injustice that ILD and many of our partner organizations fight on the systemic level. For they aren’t just incidental accidents of the US immigration system. In fact, these delays are highly functional. They serve as a form of terror through bureaucracy, stranding millions in a state of precarity and uncertainty.

Back to School

Across the state of California, millions of students are settling into their first weeks of the new school year or gearing up to begin. 

Partnering with educational institutions to provide immigration legal services and education to our state’s students is one of ILD’s core programs. Currently, we work with 9 California State University (CSU) campuses, 34 California Community College (CCC) campuses, and the Oakland Unified School District (OUSD) to respond to the urgent and previously overlooked immigration legal needs of thousands of Californians.

The U.S. immigration system is full of complexities and injustices. It is a cruel and difficult system to navigate — in many cases, it is almost impossible to navigate without qualified legal counsel. As anyone pursuing immigration relief or caught up in the tangle of removal proceedings knows, interfacing with the U.S. immigration system is taxing, confusing, exhausting, and often all-encompassing. 

By providing direct representation to thousands of California students from kindergarten through college and beyond, as well as their families and school community members, ILD supports them in accessing the legal counsel and relief they deserve. This way, students can do what is most important: focus on their families, their studies, their futures, and their dreams. 

In addition to providing direct representation, we offer other free legal services and conduct extensive community legal education, from our podcast in partnership with the Fresno State Dream Success Center to this blog to virtual and in-person community education sessions. This Fall, we’re hosting a series of virtual opportunities for students, staff, faculty, their family members, and alumni at California State Universities and California Community Colleges to learn more about what’s going on in the tangled U.S. immigration system and how it might affect them or their cases. 

Are you a student, staff, family member, or Cal State or California Community College alumni? If so, join us at one of the engagements below!

• Wednesday, September 6th, 12:00-1:00 PST: Immigration policy updates & relief options beyond DACA

• Wednesday, October 18th, 12:00-1:00 PST (part of Undocumented Student Action Week!): What’s going on with DACA and Advanced Parole

• Wednesday, November 8th, 12:00-1:00 PST: Latest DACA updates and other current issues

ILD at the US-Mexico Border

While ILD’s offices are located in Oakland, California, the scope of our work is national – sometimes even international. Much of what we do can be tied back to the horrors of the U.S.-Mexico border and the US immigration system’s architecture of exclusion. 

Many of  ILD’s clients have endured the abuses and indignities of the border regime – whether at the border itself, at the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers, in immigration jails, or immigration courtrooms. ILD works to provide direct representation to those entangled within the border’s long reach while also working to dismantle the immigration enforcement system itself – a system that is rotten at its core and that seems to be growing all the more brutal with each passing day. This work frequently takes us to the border itself. 

ILD’s Managing Attorney, Ilyce Shugall, recently took part in a pro-bono delegation with the American Bar Association (ABA) to the Rio Grande Valley in South Texas, where she began her career as an immigration attorney nearly twenty-five years ago.  

“The humanitarian crisis at the border is unlike anything I saw between 1999 and 2001,” Ilyce wrote in a blog post for the ABA. 

Such visits remind us that the violence along the border takes many forms. In March, ILD’s Managing Attorney, Claudia Valenzuela, and ILD Board Secretary, Sarah Diaz, brought a group of law students from Loyola University Chicago to southeast Texas as part of their immigration legal training. 

“The immigration system is stitched into the fabric of the border communities,” explains Diaz, Associate Director of the Center for the Human Rights of Children and Lecturer in the School of Law at Loyola.  But over the past two decades, she reflects, the border has become increasingly militarized. The overall tenor all along the border, now – as well as within the elements of the immigration system that stretch into the interior, such as detention and immigration courts – "can best be described as legalized violence." 

Border violence is also evident in the courtroom. Diaz and Valenzuela’s students sat in on proceedings at the Harlingen, Texas courthouse. This visit “really cemented for students the notion that the immigration courtroom is not a fair and neutral place for immigrants,” Valenzuela explains. From the way the judge addressed scared immigrants in court to the manner in which the guards interacted with the student delegation upon entry, the environment was an adversarial one – hostile even. 

“I have worked in legal academia since 2007,” Diaz wrote in a recent letter, “and I have found that less and less of my students are interested in pursuing a career in immigration because they perceive the system to be biased and painfully broken.”

When Shugall visited the encampments in Matamoros, she was horrified at what she saw – people living in tents made of garbage bags, few accessible bathrooms, no services because the Mexican government had recently barred nonprofits from working in the camp – and all because the US was forcing these individuals seeking protection to wait on the Mexican side of the border for their turn to request protection at a port of entry. 

Another mechanism of border violence is deportation. ILD’s Founding Managing Attorney, Laura Polstein, recently made a trip to an Arizona detention facility because that’s where her client – a man we’ll call Felipe who had been deported years ago for reasons that are no longer grounds for deportation – was ordered to appear for his merits hearing. She was fighting to have Felipe’s permanent residence restored. Since being deported, he’d primarily lived alone, struggled to afford critical prescription medication, and was separated from his family. He missed his son’s funeral because he wasn’t allowed back across “the line,” i.e., the border. To even attend his hearing, Felipe had to travel many miles with limited resources, meet his sister at the border checkpoint, and then drive many more hours to endure an adversarial court hearing from within an immigration jail – itself a symbol of the repressive nature of the border and its attempts to both warehouse people and break them down. Felipe won his case, which was a life-changing victory, but only because of Polstein’s tenacity and ability to navigate the system’s ruthless labyrinth.

It’s important to note that the violence of US immigration policies has a body count. Since 2014, 4,544 people have died attempting to cross into the US, according to the Missing Migrants Project. And those are just the ones we know about.  

“Customs and Border Protection knows people are dying on their territory, and they don’t do anything about it,” Diaz says. Instead, the agency is actively pushing people into this hostile territory. "Advocates have begun to describe this phenomenon as the forced disappearance of migrants through death in the desert, but it's carried out under the guise of lawful border enforcement policy." Meanwhile, dozens of people have died in ICE custody–many, as recent reports have found, as a result of inadequate or negligent medical care. 

At ILD, we understand that much of the immigration system’s inner workings connect back to the border’s brutal machinery–and we wish that more US-Americans saw first-hand the way our policies and tax dollars are made manifest there.  

“Any visit to the border triggers a lot of emotions for folks,” Valenzuela says–whether they are people crossing the border or working on their behalf. 

When Shugall visited the asylum seeker encampment in Matamoros, Mexico, she was constantly approached by groups of asylum seekers looking for help. Though they had limited food and water, no sanitation services or medical care, what they were looking for was information about how to use the wildly dysfunctional CBP One app to navigate their cases, how to find an attorney, when they might get a hearing, how to access critical medical care, and when and how to reunite with family members. In our current system, this sort of information can be a matter of life and death. 

The complexity of the immigration system can thus be seen as another form of violence at the border, borne of ill-sighted and cruel U.S. immigration laws and policies, as can the lack of universal representation in immigration courts. This is why ILD’s work is so critical – providing urgent direct assistance to people caught in our immigration system while working to dismantle the system itself.

The Dangers of Sloppy Immigration Journalism

A recent New Yorker piece opens in a helicopter patrolling the border between Texas and Mexico. “We got four bodies headed north,” a border patrol agent says. “Behind you, six bodies,” says another.  These are agents patrolling one of the most militarized, mythologized, and violent borders in the world – and it’s agents like them, as well as the politicians and policymakers that employ and direct them, who uphold the border’s ferocious reign. In their eyes, those crossing the perilous desert below aren’t, in fact, people but mere “bodies.” The border has a way of obscuring the humanity of the people who find themselves there – if one lets it.

Sadly, the New Yorker piece takes a similar dehumanizing stance, pinning the “chaos” and “unrest” at the border on the migrating people themselves rather than the policymakers and politicians who design, promote, and benefit from this chaos. 

Of President Biden, Filkins, on the New Yorker Radio Hour, says, “His critics would say that he invited people in, and that’s pretty strong language, but it’s not inaccurate.” This line of thinking woefully misrepresents the facts: asylum seekers present themselves at or cross the border into the United States in search of protection, not because a single president invited them but because international and domestic law ensure them the right to seek protection. Yet Filkins’ suggests that “…this moral imperative has created an administrative impossibility.”

But this is not how laws work, and asylum happens to be law, not merely a matter of administrative possibility or impossibility. Moral imperatives do not hinge on administrative convenience.

As other journalists, politicians, and even advocates often do, Filkins invokes the tired language of a “broken” US immigration system. “There’s not enough border patrol agents on the border,” he writes, “there’s not enough immigration judges to hear cases – the whole system is overwhelmed, a system of gigantic bottlenecks.” 

The bottlenecks he speaks of do indeed create administrative delays of absurdist proportions. Still, these don’t benefit immigrants seeking safety, as he suggests (“Once a person gets into the country,” he says, “they’re in for a good decade because they can appeal their case, and it will sort of go on forever.”) Rather, these logjams leave asylum seekers and other migrants in a protracted state of instability. 

Anti-immigrant policymakers benefit from these administrative delays, for they traffic in the cynical calculation of making the process long and complicated enough, and people will simply give up. Many do. Meanwhile, private companies profit financially for every night a person spends in federal custody. 

The immigration system’s backlogs and administrative delays aren’t just unavoidable happenstance of an “overwhelmed” border, as Filkins seems to suggest. Instead, they are the intended and unintended results of priorities and choices designed by some to limit access to due process, provide political cover, and bludgeon their political opponents in the field of electoral politics and fundraising.  But Filkins fails to deconstruct and examine this unwieldy system meaningfully. Instead, he blames the numbers of migrants, those “bodies,” and thus the migrating people themselves. 

At ILD, we witness daily how the immigration system, rather than being “broken,” functions extraordinarily well in methodically denying access to due process as a primary means to keep all those “bodies” out. 

The notion he puts forth that people step foot on US soil and get to stay here for years and years while pursuing their cases flouts the facts. Only 37% of people in removal proceedings are able to find an attorney – and only 14% of people locked in immigration prisons do. (He makes slight mention of this in his piece but practically only in passing, given the magnitude of this injustice; imagine, for instance, a US criminal system in which only 14% of incarcerated defendants were represented.) 

Filkins points to data reflecting that half of all asylum claims that make it to a final decision are denied as evidence that the former administration was “not necessarily wrong” when they insisted migrants were putting forth insupportable claims.  But he fails to connect the dots to the experience of Paul Lee, a lawyer at Steptoe & Johnson in Washington, who told Filkins that many asylum seekers with compelling stories of persecution fail because they are forced to argue their own cases.  “I have seen children - six, seven, and eight years old – have to stand up in front of a judge,” Lee told him.  

Without legal counsel, asylum seekers’ odds of winning their case are slim. Data from the Niskanen Center shows that for those without representation, only 1 in 10 claimants ultimately win their asylum case. In contrast, those represented by counsel are at least three times more likely to have their claims approved.  Even so, Filkins concludes that the denial rate of 50% of all asylum claims suggests asylum seekers are putting forth insupportable claims rather than simply lacking representation and are not afforded the due process needed to win their cases. 

ILD’s work focuses on fighting for each individual client within a deeply unjust system while simultaneously working to dismantle the system that creates these inhumane conditions in the first place. To upend the brutalities of the US immigration system – from the horrors of immigration detention to the unconscionable administrative delays to the long odds of simply finding a competent, affordable lawyer to the brutishness of border enforcement – requires an unflinching eye unwilling to look away in the face of this deeply troubling system, as well as the mythologies underpinning it. 

This is why we all need rigorous immigration journalism.

Filkins isn’t alone in his fundamental misunderstanding and facile treatment of what’s happening at the border. Still, his work, given his platform, perpetuates deeply harmful, downright preposterous, and morally wrong mythologies. What he calls anxieties around the border are, in part, a creation of storytellers like him – and serve as useful instruments to further divisive, racist, anti-immigrant narratives.