An Obama-era deportation relief program may soon face a legal challenge — and the Trump administration won’t commit to defending it, Homeland Security Secretary John Kelly told Hispanic lawmakers at a closed-door meeting Wednesday on Capitol Hill.
Twenty Democratic members of the Congressional Hispanic Caucus pressed Kelly for assurances that he would help preserve the Deferred Action for Childhood Arrivals program, which grants deportation relief and access to work permits to undocumented immigrants brought to the U.S. at a young age.
Kelly told the lawmakers that although he personally supports DACA, he can’t guarantee that the administration would defend it in court. He also said that he’d consulted attorneys who told him the program wouldn’t survive a legal challenge.
“It’s not a pretty picture," Sen. Bob Menendez (D-N.J.), who attended the meeting, told reporters. “The legal authorities that he’s spoken to suggest that DACA cannot be sustained legally. We have a different view.”
The secretary declined to take questions after the meeting, but a department spokesperson confirmed accounts from lawmakers.
DACA’s future has been uncertain since President Donald Trump, who pledged during the campaign to eliminate the program, took office. After his inauguration Trump said participants in the program, known as DREAMers, "shouldn’t be very worried" and that "we’re looking at it with great heart." In mid-June, DHS said on its website that DREAMers currently participating in the program would not have their work permits canceled prior to their scheduled expiration.
But a DHS spokesman followed up that web posting by stating, "The future of the DACA program continues to be under review." Then, in late June, Texas Attorney General Ken Paxton and his counterparts from nine other Republican-led states sent a letter to Attorney General Jeff Sessions that demanded the Trump administration rescind the program. If not, the coalition threatened, it would amend an ongoing lawsuit against another deportation relief program to target DACA as well. Such a move would compel the Trump administration to clarify a position on DACA that it’s preferred to keep vague.
David Lapan, a department spokesperson, said Kelly spoke with several lawyers inside and outside the department to assess the odds that the program could survive a court challenge. “Most of them felt that DACA, as it exists, is not legally sustainable,” Lapan said.
Kelly’s comments, and Lapan’s, suggest the Trump administration likely won’t defend DACA if it’s challenged in court. At the meeting, Kelly urged Congress to find a legislative solution. Bipartisan bills in the House and Senate, dubbed the Bridge Act, would provide legal status for DACA recipients. But Kelly hasn’t given it his endorsement.
“He said the same dumb line, ‘Well, Congress should do something about it,’" Rep. Ruben Gallego (D-Ariz.) said. "Well, obviously we want to do something about it."
Rep. Nanette Diaz Barragán (D-Calif.) said the members asked Kelly whether he would publicly back a legal pathway for people covered by the program. “I told him we would invite him to a press conference in support of DACA legislation, and he said that he would consider it,” she said after the meeting.
Kelly recently trekked to Capitol Hill to back several Republican immigration enforcement bills in the House, but he has not advocated passage of a DACA bill.
“I mentioned the Bridge Act specifically, and it almost sounded like he didn’t even know what that was,” said Barragán.
The secretary also addressed the fate of countries that currently qualify for temporary protected status, a humanitarian program that allows people whose homelands have been struck by a natural disaster or conflict to live and work in the U.S.
The TPS status of Nicaragua, Honduras and El Salvador will expire early next year, but Kelly would not vow to renew them.