Into the Future of DREAMers
Barack Obama: Good afternoon, everybody. This morning, Secretary Napolitano announced new actions my administration will take to mend our nation's immigration policy to make it more fair, more efficient, and more just. Specifically for certain young people sometimes called Dreamers.
Trymaine Lee: That was eight years ago, June of 2012, President Obama in the Rose Garden announcing a program that would affect hundreds of thousands of undocumented young people who came to the U.S. as children.
Obama: Now, these are young people who study in our schools, they play in our neighborhoods, they're friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, and every single way but one: on paper.
Lee: Now, they could stay without fear of being deported. These young people could apply for protection under a program known as DACA, Deferred Action for Childhood Arrivals, a temporary step until Congress pass a more permanent immigration reform.
Obama: Now, let's be clear. This is not amnesty, this is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that let's us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.
Lee: But three years ago...
Jeff Sessions: I'm here today to announce that the program known as DACA that was effectuated under the Obama amendment is being rescinded.
Lee: The Trump administration canceled DACA.
Sessions: If we are to further our goal of strengthening the constitutional order and the rule of law in America, the Department of Justice cannot defend this overreach.
Protesters: We are here to stay. Get out the way. Get out the way.
Lee: There were massive protests.
Lee: And a lawsuit that went all the way up to the Supreme Court. A decision is expected any day now, and if the court rules in favor of the Trump administration, more than 700,000 Dreamers, now in limbo, could be subject to deportation. (MUSIC) I'm Trymaine Lee, and this is Into America. Today, we're going into the fight over DACA with a lawyer for whom this fight is personal.
Luis Cortes Romero: This is gonna be a situation where Donald Trump is trying to deport my clients and me with them.
Lee: Luis Cortes Romero, just 32 years old, is one of the lawyers for the DACA recipients. And, if the decision goes against his clients, it will also go against him. He is one of the Dreamers. He joined us from Washington State. So I know you didn't just sprout from the steps of the (LAUGH) Supreme Court, right? Tell us about where you're from and your family and everything.
Romero: I was born in Mexico. And I was brought to the United States when I was two years old. And so I grew up in California and even still consider myself a California guy and really identify with that. But as I was getting older, I knew that I was an immigrant and I knew that I wasn't born here.
But my life really has been a series of events of figuring out what that means. When I was in eighth grade, my eighth grade class was organizing a trip to Europe. And throughout the school year we were supposed to be selling chocolate in order to fund raise some of the money. And I tried to hustle that chocolate to whoever would buy it.
Lee: Just throwin' chocolate at everybody. "You're gettin' (LAUGH) some, you're gettin' some."
Romero: Yeah. And, you know, I was getting very excited 'cause I was reaching the goal. And it looked I was on pace to make it. And so I had explained to my mom, you know, like, "I'm really excited to go." And that's when she, I think, finally just dropped it on me. Saying, you know, "You can't go because you weren't born here."
Lee: Hearing that from your mother, how did that feel? And also, was it, like, a family secret? Like, were they keeping this from you?
Romero: I just really didn't know what that meant. But what I did know, is that we did try to keep the fact that we weren't born here from other people. And I became aware of that when we started see ICE raids in our community. All of a sudden, you know, what seemed like patrol cars kind of surrounding buildings, they're taking people. And all I knew at the time is it's because we weren't born here. And so there were moments where we wouldn't even go to school because we couldn't leave our apartment because there's ICE outside. My dad was deported when I was in high school.
Lee: Wow. So it went from kinda bein' an inconvenience to something that could be dangerous.
Lee: Does it rear its head again? I'd imagine applyin' for student loans and college, did it trip you up?
Romero: In my first year of law school, I realized that I very likely couldn't be admitted to the bar because I wasn't born here. It was snowing and I was in my car. And I called my mom and it was right before Thanksgiving break. And I told her, you know, "I think I'm gonna drive back home. And I just don't think I'm gonna come back. So I'm gonna pack up my stuff. I'm letting you know now, I'm packing up all my stuff. I don't wanna go through all of this and, you know, try to hustle for tuition money and all of that when I'm not gonna be able to practice law. So I'll figure somethin' else out."
And she said, "You are not leaving." She said, "They can't unteach you what they're gonna teach you there. So you go and you learn all of that and we'll figure the rest out of it later. People like you aren't in those spaces. So you don't come back over here or you'll gonna have to deal with me."
Lee: Wow. (LAUGH) So you're pushin' through. And then in 2012, President Obama announces DACA, which is the Deferred Action for Childhood Arrivals. What'd that mean for you? Like, what were you feeling? Was this a glimmer of hope?
Romero: It was the summer before my last year of law school. So, you know, people are already talking about what they're gonna do after they graduate. I still had no idea. And so this thing comes down the summer before I'm supposed to graduate, the summer before my last year.
And I could not believe it. I could not believe it. And it was the first time that I felt safe, at least temporarily. I became much more open about my status, much more vocal. Because now I at least felt that there wasn't gonna be that direct repercussion. That someone could just call ICE because they disagreed with me. It took this weight off of me, that I didn't realize how heavy it was until it was off of me.
Lee: We fast forward to September of 2017. President Donald Trump is in office and he's pledging to, like, repeal DACA. What went through your mind when you heard Donald Trump talkin' about taking this status away?
Romero: I at that point had graduated law school. I was already working as a lawyer in Seattle, Washington. I'm working a lot at the immigrant detention centers. I was already kind of in federal courts trying to defend DACA at least at some level.
And so when DACA was rescinded, I saw the announcement and I thought about my clients. So what do we do? I saw that the state of California filed a lawsuit. The UC regents of California filed a lawsuit. Then by the world of stories of the DACA recipients themselves, the ones whose very lives are at stake.
Someone needs to hear our stories. So we got a cross-section of six DACA recipients. And it's not just a Latino issue, you know? And so we made sure that that was represented within our lawsuit. And it's a cross-section of students, community organizers, special ed teachers, a doctor, a lawyer.
And we collectively then decided to tell the story. And filed a lawsuit within a few days of the DACA program being rescinded. And we filed it. I think, you know, the program was rescinded on a Monday. We filed the lawsuit on, like, a Thursday. And we were now in court by, you know, the next Monday. We had to fly down to San Francisco and we got things rollin'.
Lee: Has the fact that you're actually a DACA recipient every, like, come up in court while you're, like, (LAUGH) standing in front of a judge in the case? Has it come up?
Romero: Yeah. When we were in district court in San Francisco, I tell him about what the application process looks like. 'Cause the judge also was very interested to know about the practicalities. And at one point he asks, "Well, how do you know all this, you know? You're giving me a lotta detail."
I just wanna tell him, "I'm a DACA recipient. And I know this because I just had to get my fingerprints redone and my photo retaken not that long ago. And I know this process because I live this process." And there was a silence in the court. But a very loud silence. All of a sudden the issue was right in front of everybody. It wasn't an abstract issue. It wasn't about hundreds of thousands of people outside. For a moment, it was about the one person inside.
Lee: So the case ends up making its way all the way up to the Supreme Court with you as co-counsel on the case. How did we actually get there?
Romero: The Executive Branch, the Department of Homeland Security, and the Department of Justice do have wide discretion on immigrant matters. But how they go about having these decisions done and the decision making process is what really keeps the Executive Branch accountable.
President Trump said, you know, "I have to end the program because it's unlawful. I have no choice on the matter." And so he was kinda hiding behind that. And so we had to prove DACA's legality in order to say, "Well, no, you did have a choice in the matter. And, you know, you saying that you don't is not a lawful reason for you to end the program."
The judge also agrees and, you know, puts an injunction. The Department of Homeland Security and the Department of Justice appeal to the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals agrees with us again, and so we win there. And the Department of Justice takes it to the Supreme Court.
And the Supreme Court sits on the case for a while. Doesn't know whether it's gonna wanna hear it. In the meantime, there are other lawsuit that are being filed in Washington, D.C., in New York, and in different areas. And by the time the Supreme Court takes our case up, it takes all of these other cases up that had been filed since then. And it all gets consolidated together at the U.S. Supreme Court.
Lee: Up next, making the case. Luis walks us through the legal arguments on DACA and the possible outcomes that could impact him and his clients. That's after the break.
Lee: We're back with Luis Cortes Romero. And here's how his colleague Ted Olson, the lead attorney defending DACA, opened his arguments at the Supreme Court.
Ted Olson: The government's termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities, and armed forces. That decision required the government to provide an accurate reason, rational, and legally-sound explanation. It utterly failed to do so.
Lee: So let me ask you this, Luis. Last November, right? You're 31 years old. You know, a kid who almost dropped outta law school but your mother had to pop you in the head (LAUGHTER) and make you stay the course. You're young, you're there. What is that like in that moment for you? Like, being there, so young, your journey and there you are.
Romero: Yeah, I had never been to the Supreme Court before. And so--
Lee: You haven't even been there before.
Romero: No, I hadn't even been there. I went the day before and just to check it out. When I was there, I realized that these are the steps where a lot of really important decisions are made. So much happens here. And I thought a lot about what it must've felt like for some of the big civil rights cases before and after. The day of, I arrive at the Supreme Court with Ted. And (BACKGROUND VOICES) there's already thousands of people there.
Protest Leader: I am.
Crowd: I am.
Protest Leader: Somebody.
Protest Leader: And I desire.
Crowd: I desire.
Protest Leader: Full equality.
Crowd: Full equality.
Protest Leader: Right here.
Crowd: Right here.
Protest Leader: Right now.
Crowd: Right now.
Protest Leader: My mother.
Crowd: My mother.
Protest Leader: Is somebody.
Romero: You know, I start to also really see that there's so much riding on this. You know, we knew it. And we always know it. But it feels a bit abstract when you're dealing with it all the time. We start seeing all these faces there. And when we go into the Supreme Court, I start feeling it's a majestic place, but I can't help but feel that it's a place that very few make it in. And that people like me don't make it in there. Then the ball starts rolling.
Lee: I know you didn't make the arguments yourself, Ted Olson did. But in a nutshell, what was the case for retaining DACA? What were you guys arguing?
Romero: So, you know, it really just falls into three buckets, ultimately, where the consequences can come out. But the first one is we're trying to show that DACA was lawful. That DACA was a legal program. Because one of the reasons that President Trump had rescinded the program was because it was unlawful.
So if we can show that it was lawful, then the reasons he did it was essentially void. Way after the program had ended, or he tried to end the program, he then said, "Well, even if the program is lawful, I don't think it's a good policy. So I'm just gonna rescind it myself."
In order to do that, you need to show that you considered all the things that are at stake. And once you considered all the things that are at stake, and if you still decide to rescind the program, then you can. Our argument was you rescinded the program without considering all the stuff at stake.
And we had a lot of what are called amicus briefs, which are friend-of-the-court briefs. Fortune 500 companies submitted a brief saying, "This is going to create a multi billion-dollar deficit if all of a sudden hundreds of thousands of people are now stripped from the work authorization, and worse, told that they have to leave the country."
We wanted really the justices to know that this isn't about the 800,000 applicants. It's about them and their communities. We're talking about teachers and their students, lawyers and their clients, doctors and their patients. It's gonna be millions of people who this is gonna impact if this program is allowed to be rescinded.
And President Trump did not seem to take any of that in consideration. So our circuit argument is, you know, even if we can prove the legality of the program, he didn't consider all of the things, all of the consequences before rescinding the program. And the third part of it is any kind of after-the-fact considerations are just that, kind of after the fact.
And the law requires for you to do it beforehand. The Department of Justice argues, "Well, we might have not done our homework all the way correctly, but it's good enough." And so we're saying that good enough doesn't cut it. And so that's kinda what's at question here.
Lee: And so what are, like, the possible outcomes that you might expect? And what would be one where it's, like, the dream scenario for DACA recipients?
Romero: Yeah, so the dream scenario for DACA recipients would be that the court says 1) Yes, the DACA program is lawful. And so that is announced. And then 2) That the way in which President Trump rescinded the program was unlawful. He didn't take all these things into consideration. It shows.
And so if you're going to rescind the program, you then need to explain how you took all of these economic, personal considerations at stake, particularly in light of a pandemic. That would be the dream scenario. Because then, President Trump would be forced to take ownership of ending the program in an election year, where an overwhelming amount of Americans support DACA.
So I think, you know, he has a tough political choice to make there. That would be the dream scenario. The kinda middle-road scenario is where the Supreme Court says, "DACA is lawful. But the way in which President Trump rescinded the program, it maybe wasn't perfect, but it was good enough. So we're gonna allow him to terminate the program."
Now, the reason that's a bit middle-of-the-road is because at least the court had said DACA is lawful. So if there's a change in presidential administration in the future, there could be a DACA 2.0, potentially. That would be a bit of a soft landing for DACA.
The worst-case scenario is for the Supreme Court to say, "DACA's unlawful outright. It shouldn't have been a program that started anyway. And so DACA's unlawful. So it doesn't matter if he didn't do all of his homework, because it was unlawful." Now, that would prohibit any future administration from doing some sort of other type of DACA program. And so that, I think, would be the worst-case scenario for the outcome of the case.
Lee: What's at stake for DACA recipients here? How will this impact the real lives of everyday people, such as yourself, who've been here since children, who are fighting for a piece of what America says it is?
Romero: Yeah. When DACA was started, you know, one of the promises made by the Department of Homeland Security and the Department of Justice is that, "Turn over all your information and we will not share it with ICE. We will only use it to process your application."
The Department of Homeland Security has taken that back multiple times. And, according to the Department of Homeland Security, it will be the start of a removal process. Where we will be sent to immigrant court, for those who have that privilege. We'll be sent to immigrant court.
And then the immigration system is set up in a way where it's virtually impossible for win for a DACA recipient in the circumstances. That's why DACA was created, because there is no other way. And ultimately, an immigrant judge very likely will have his hands tied and say, "There's nothing under the law that I can do to protect you. Here is your deportation order."
Lee: You know, when I hear that, it always sounds crazy because there are stories of people who haven't been in Mexico or wherever since they were, like, three years old. And here they are in this foreign land. (LAUGH) Some of 'em don't speak the language. That sounds terrifyin'.
Romero: It sounds very terrifying to lose the community that we've built here with each other and our peers, our contributions. And, you know, there was a case that I remember even back from, like, the 1950s. Where the Supreme Court said that deportation leads to the loss of what makes life worth living.
And I think that could be true in a lotta ways. And so, you know, we are gonna see hundreds of thousands of young people start a process of an exile. And to start anew where we might not have community. We may not have support, or might not even speak the language.
Lee: Is there any sense of how quickly one might expect proceedings or deportations?
Romero: One of the things that this administration has been great about is really stripping the procedural safeguards in immigrant proceedings. They've proposed rules that would streamline the process where an outcome can be done, you know, within a matter of months.
Usually, the immigration courts are a bit backlogged, so it will take maybe a year, two years in order to kinda get it over with. With these new proposals, if we're looking at a worst-case scenario, we need to know what that timeline looks like in order to push Congress, and push in this election, to do the just thing, to do the right thing.
Lee: So how are you feelin' in this moment, man? You're a lawyer, but you'll be impacted, however the court decides, as a DACA recipient. So as you sit here today havin' this conversation, how does it feel?
Romero: You know, it's nerve-wracking. And I'll be honest, there are moments where sometimes that weight feels a bit heavier than other days, knowing that my fate is wrapped up with all of my clients. And it's a lot, you know? Particularly in this climate where there's already a lot happening.
You know, sometimes it gets a bit overwhelming. But I'm also inspired, at least at this moment. I'm reminded of what brought about some of the most serious change in America. And we see this, I think, across movements, where it's the direct action by people, not Congress, by people, that really changes America for the better.
I've always seen that it's activism that leads and the law that follows it. And we're seeing that in huge strides now. So I do feel inspired. I do feel inspired that even if the decision goes the other way, that we're in a moment where we're shifting America to the promise that it's supposed to be. And that we're becoming more perfect and a better version of what we all know it is. And so, you know, I have a lot of faith in people.
Lee: Luis, thank you so very much for your time. We really appreciate it and I'm sure we'll be hearing from you again soon. Thank you very much.
Romero: Thank you so much for having me. It was such an honor to be here.
Lee: That was Luis Cortes Romero, one of the lawyers on the DACA case currently being decided by the Supreme Court, and a DACA recipient himself. The court is expected to issue a ruling on DACA before the end of this month. Into America is produced by Isabel Angel, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan.
Original music by Hannis Brown. Our executive producer is Ellen Frankman. Steve Lickteig is executive producer of audio. I'm Trymaine Lee. And just as a reminder, we're out three days a week now. So we'll see you tomorrow, then again next Monday, Wednesday, and Thursday. You all take care.