Activists are staging a furious rearguard action to try to preserve the Obama-era deportation amnesty for illegal immigrant Dreamers, making raw political appeals to President Trump and saying he must keep the program afloat to stave off a humanitarian outrage.
But Mr. Trump’s decision, which he will announce Tuesday, will likely come down to a legal calculation as much as anything else, according to analysts.
They say the 2012 amnesty, known in governmentspeak by the acronym DACA, has little chance of being upheld if the president tries to defend it.
Indeed, Tuesday’s deadline for a decision by Mr. Trump was imposed by Texas — the same state that won the injunction against a similar 2014 amnesty announced by President Obama. Analysts say the same federal courts that struck down the 2014 amnesty will block the 2012 Dreamer policy as well.
The White House hasn’t tipped its hand and insisted that the decision was still being mulled over the past week. However, two sources familiar with the plan say Mr. Trump will end the program, but with a six-month delay to allow Congress to address the issue, Politico first reported on Sunday.
Hoping to pile on last-minute pressure, immigrant rights groups are highlighting the biggest success stories — including one DACA recipient who is working as a paramedic in the Houston area as part of the Hurricane Harvey relief effort but who fears he will be deported if the program expires.
Activists also urged Mr. Trump to call Texas Attorney General Ken Paxton and beg him not to pursue the promised legal challenge.
“It’s his decision and his decision alone,” said Frank Sharry, executive director of America’s Voice, a leading pro-immigration advocacy group. “He can and should announce on Tuesday that DACA will continue, and he can and should call Texas Attorney General Ken Paxton to tell him to back off his threatened legal action. This will keep DACA in place until Congress has a chance to enact the bipartisan Dream Act.”
Mark Krikorian, executive director of the Center for Immigration Studies, which backs stricter immigration limits, laid out a different path.
“DACA has to be repealed because it’s illegal and because it creates a bad precedent for future executives,” he said, but he added that doesn’t mean the president has to throw everyone out of the country immediately.
He said Mr. Trump could instead announce an end date — say the beginning of October or November — when he would stop renewing applications, effectively setting deadlines for Congress to act on a more permanent solution and demanding stiffer enforcement.
“The president should say, ‘Look, these are terrific young people and I want to make sure we give them a real amnesty, not this cockamamie thing Obama dreamed up. But we have to deal with the consequences, make sure 10 years from now we don’t have to pass another [amnesty] for them,’” Mr. Krikorian said.
DACA’s legal status has been questionable from the start. Years before he announced the program, Mr. Obama publicly doubted that he had the ability to unilaterally grant a categorical stay of deportation to so many illegal immigrants.
The Justice Department’s office of legal counsel orally gave the White House approval but said those deciding the applications had to have discretion to reject people. In the end, the program didn’t follow that advice and resulted in an approval rate that at last count topped 92 percent.
Citing that high rate, federal courts struck down Mr. Obama’s later amnesty, the 2014 program known as DAPA, which applied to parents of U.S. citizens and legal permanent residents — a broader category than Dreamers.
The DACA case, if Texas pursues it, would go back to the same courts that overturned DAPA. Legal analysts on both sides doubted those courts would uphold DACA based on the precedent set in the DAPA case.
The White House wouldn’t say how much weight Mr. Trump was giving to the legal considerations as he decides what to do.
“He’s going through all the details of this very thoroughly,” press secretary Sarah Huckabee Sanders told reporters Friday as they repeatedly tried to get her to predict the president’s decision.
Mr. Paxton, the Texas attorney general, has said if Mr. Trump doesn’t agree to phase out DACA, he will ask Judge Andrew S. Hanen, the same judge who first overruled DAPA, to expand that case to include DACA.
DACA supporters’ best legal hopes are that the Texas court will refuse to expand the DAPA case. The Mexican American Legal Defense and Educational Fund has already asked Judge Hanen to close the DAPA case, saying that legal dispute is settled.
Judge Hanen had put off a decision pending the Tuesday deadline.
“We would urge the president to leave the DACA issue to the courts,” said Nina Perales, a Mexican American Legal Defense and Educational Fund lawyer representing several illegal immigrants in the Texas courtroom.
DACA provides its beneficiaries — younger people brought to the U.S. illegally while minors by their parents — a two-year stay of deportation and offers a work permit. That entitles illegal immigrants to a Social Security number, a driver’s license, access to national tax benefits and, in some states, to other benefits such as in-state tuition rates or even taxpayer-funded financial assistance for college.
The permits can be renewed indefinitely, and some DACA recipients are on their third round, having been protected since late 2012.
Through July 31, U.S. Citizenship and Immigration Services had given initial approval to some 794,846 DACA applicants and had issued 923,714 total renewals.
Some 2,139 illegal immigrants have had their DACA status revoked because of criminal behavior or gang ties. It’s a very low rate — about a quarter of 1 percent — but it does show not all of those who are part of the program keep clean records.
Among the reasons for revocation are convictions for drugs, drunken driving, assault, domestic violence, sex offenses and alien smuggling.
Overall, though, the program has been a massive success in getting recipients a firmer foothold in society. Some 97 percent are either in school or holding a job, and their average incomes have almost doubled since they won tentative legal status, according to the latest data from an ongoing survey of DACA recipients by the Center for American Progress and Tom Wong at the University of California, San Diego.
The researchers said 5 percent of DACA recipients have even started their own businesses and 16 percent have bought homes.
A wide range of lawmakers and groups are calling on the president to maintain DACA. House Speaker Paul D. Ryan, Wisconsin Republican, joined those voices Friday, saying he opposed efforts to end the program.
“I actually don’t think he should do that, and I believe that this is something that Congress has to fix,” Mr. Ryan told WCLO radio in his hometown of Janesville.
Mr. Ryan said Mr. Obama’s policy was illegal and required legislation.
“I really do believe that there needs to be a legislative solution. That’s one we’re working on. We want to give people peace of mind,” he said.
That suggestion took Capitol Hill aides on both sides of the aisle by surprise, and Mr. Ryan’s office wasn’t able to explain what legislation he was talking about.
Republicans on Capitol Hill did, however, expose a loophole that has allowed thousands of DACA recipients to get onto a pathway to citizenship.
More than 45,000 have been approved for “advance parole,” which is permission to leave and re-enter the U.S. despite not being in permanent legal status here, according to numbers released by the House and Senate Judiciary Committees on Friday.
Under a quirk of law, those granted advance parole can then ask to adjust their status and skip a 10-year wait, gaining quick legal residence — and eventually citizenship — as long as they have another qualifying relationship such as marriage to a U.S. citizen.
The Obama administration refused previous requests for the data, but the Trump administration provided it to Congress.