Trump, Dems can solve the DACA problem by redefining it

Trump, Dems can solve the DACA problem by redefining it
© Greg Nash

President Donald TrumpDonald John TrumpRussian sanctions will boomerang States, cities rethink tax incentives after Amazon HQ2 backlash A Presidents Day perspective on the nature of a free press MORE and Republican congressmen have been trying unsuccessfully to cut a deal with the Democrats that would provide lawful status for the undocumented aliens in the Deferred Action for Childhood Arrivals (DACA) program.

The negotiations have seemed promising sometimes, such as when Trump offered a legalization program for 1.8 million undocumented aliens with his Framework on Immigration Reform & Border Security, but the Democrats would not agree to the concessions he was demanding in this four-pillar proposal.

I hope the Democrats are not holding out for a DREAM Act like the American Hope Act of 2017, which would have legalized millions of undocumented aliens who came to America as children.  I call it “The False Hope Act” in a previous article I wrote about it. 

DREAM Acts have been pending since 2001. The Democrats could have passed one during Barack ObamaBarack Hussein ObamaA Presidents Day perspective on the nature of a free press Juan Williams: Don't count Biden out Candidates in Obama's orbit fail to capitalize on personal ties MORE’s administration. From January 2009 to January 2011, they had a strong majority in the House, and until Scott Brown’s special election in 2010, a filibuster-busting majority in the Senate. But they chose not to do it.

It might be more productive at this point to put negotiations about DACA and DREAM Acts aside and try a different approach. My suggestion is to work on creating a place in the Special Immigrant Juvenile (SIJ) program for the DACA participants.  

This little-known humanitarian program makes lawful permanent resident (LPR) status available to undocumented alien children in the United States who have been abused, abandoned, or neglected by one or both parents and who should not be returned to their own countries.

The SIJ Program

SIJ eligibility requirements are listed in the following chart:

The juvenile court order must include:

  • A declaration that the child is dependent on the court, or is under the custody of either a state agency or department, or a person or entity appointed by a state or juvenile court; 
  • A declaration that the child cannot be reunited with one or both of his parents due to abuse, neglect, or abandonment; and
  • A finding that it would not be in the child’s best interest to be returned to his country of nationality.

This chart shows the procedural steps in the SIJ process:

In FY2017, U.S. Citizenship and Immigration Services (USCIS) received 20,914 petitions for SIJ status. As of September 30, 2017, it had approved 11,335 of them.  


Undocumented aliens were considered for the DACA program if they:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the U.S. before reaching their 16th birthday;
  3. Have continuously resided in the U.S. since June 15, 2007;
  4. Were physically present in the U.S. on June 15, 2012, when they filed their DACA applications; and
  5. Had no lawful status on June 15, 2012.  

The aliens in both programs came to the United States as children and humanitarian relief is warranted in both situations to prevent them from having to return to their own countries. The SIJ aliens would be returning to abuse, neglect, or abandonment; and the DACA aliens spent their childhoods here and know no home other than America.

The need for the new category would end when all of the DACA participants have been taken care of, but this should not be a problem. Section 1059 of the FY2006 National Defense Authorization Act established Special Immigrant status for Iraqi and Afghan nationals who had served as translators for the U.S. Armed Forces, and the need for that program will end when the translators are no longer needed.

Trump’s Framework

The first pillar of Trump’s framework is the legalization program.

Putting the DACA participants in the SIJ program would facilitate a compromise on Trump’s pillar requiring an end to chain migration.

The SIJ provisions take away a participant’s right to confer immigration benefits on his parents when he becomes an LPR.  INA §101(a)(27)(J)(iii)(II) states that, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”

This restriction continues even if they naturalize.

It might be necessary to amend this provision to include the rest of the family-based classifications that Trump wants to eliminate, but that would be a much smaller concession than terminating chain migration for everyone.

The other two pillars are the wall and ending the Diversity Visa Program (DVP).

Trump has made it very clear that he will reject any deal that does not include funding for his wall.

Lastly, terminating the DVP should not be a problem. The Democrats have shown a willingness to end that program. Section 2303 of Senator Charles SchumerCharles (Chuck) Ellis SchumerBarr to testify before House Judiciary panel Graham won't call Barr to testify over Roger Stone sentencing recommendation Roger Stone witness alleges Trump targeted prosecutors in 'vile smear job' MORE’s (D-N.Y.) Gang of Eight bill would have repealed the DVP if it had been enacted.

In any case, the parties have nothing to lose from trying this approach.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.