Is Dreaming Enough? A New Path for DACA Recipients

Protest on September 9th, 2017 in response to the rescission of DACA in New York City. Photo by Rhododendrons. 

Beginning in June 2012, dreamers coming into our nation were granted an ability to achieve educational degrees through the Obama Administration’s: Deferred Action for Childhood Arrivals (DACA) program. Under this executive order, young undocumented immigrants are granted two-year work permits that intend to enable recipients a chance to contribute in their desired fields. However, careers in health care and law oftentimes require licensing regulated under individual state and federal governmental laws. New Mexico, home to almost 6,000 DACA recipients as of 2020, has given prospective dreamers newfound hope in the “land of enchantment” they call home. 

New Mexico’s Senate Bill 137 issued a rule change in 2020 recognizing that immigration status would no longer be considered a barrier for license or certification where not statutorily required. More recently, New Mexico issued rule changes effective October 1st that the same provisions of the 2020 rule would be extended to individuals seeking to obtain licensing to practice law should they meet other qualifications set forth by the New Mexico Bar Association. In an already predominantly white profession, the need for inclusion and diversity among practicing attorneys is a crucial aspect of achieving justice for a state home to numerous immigrants. 

During the Trump administration, the Department of Homeland Security (DHS) tried to rescind DACA. Federal district courts required the agency to continue accepting program applications. And in 2020, the Supreme Court held that the department’s threat to rescind DACA “violated procedural requirements in federal law, thereby leaving DACA largely intact, without deciding on the legality of DACA itself.” In a separate and ongoing case, Texas challenged the legality of DACA by invoking a 2015 decision by the U.S. Fifth Circuit Court of Appeals. That ruling found expanding DACA to grant relief to unlawfully present parents of U.S. citizen or permanent resident children is unlawful.

The Immigrant Nationality Act of 1952 (INA) establishes an intricate scheme of restrictions as to which categories of “aliens” may enter or remain in the United States. Two main questions are set forth: Has the Department of Homeland Security (DHS) violated the INA, or its constitutionality under the Take Care Clause (modifying grants that requires the President to take care that laws are faithfully executed) in pursuing execution of INA restrictions through implementing the DACA program? Or, does DACA fall under enforcement discretion that DHS enjoys to allocate its prosecutorial resources in a manner that best serves the nation’s interests? 

In a more recent case on October 5th, 2022, referred to as Texas II, held that DACA does indeed conflict with the INA’s restrictions by “creating a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits” that Congress never authorized. The Fifth Circuit Court of Appeals–encompassing Louisiana, Mississippi, and Texas–agreed DHS did not conduct a notice and comment rulemaking procedure and agreed that the establishment of DACA had thus violated the Administrative Procedure Act (APA). During the pendency of appeal to the Fifth Circuit, DHS conducted new DACA regulations and the agency argued that it did not violate the INA because it merely conferred–as an exercise of executive branch’s enforcement discretion–a “discretionary, temporary, and nonguaranteed reprieve from removal” creating no legally enforceable right for “aliens” to remain in the United States.

Pending litigation, current recipients of DACA retain their lawful status to remain and work in the United States temporarily. Recipients can also renew their status every two years, but the Fifth Circuit decision does not allow approval of new, first-time applications. Nevertheless, DHS may accept new applications for processing. Moreover, those who have not obtained DACA status cannot be granted one while the decision by the Fifth Circuit remains in place. 

The future of DACA and its dreamers are in limbo, the validity of their professional licenses are at stake, and New Mexico’s new statute is monumental to preserving the economic mobility of the state’s thousands of immigrants. More interestingly, New Mexico’s new rule changes are the next step in affirming that DACA should be upheld constitutionally in courts across the United States. According to the American Bar Association, an overwhelming number of lawyers are still white (81%) while Asian American, Hispanic, Native American and Black lawyers are severely underrepresented. 

Attorneys who hold DACA status have experience in immigration counsel and understand how law and legal processes play out, especially after their difficulty in maintaining their rightful status. The legal occupation is one of the most influential professions in the United States and a need for diverse perspectives is crucial to representation in states with high populations of minorities. Justice can not be supported by statistics, but rather, the drive these individuals have for representing communities of their own. 

Luis Cortes Romero arrived in the United States at just the age of one, and he is now a practicing partner at the Immigrant Advocacy & Litigation Center in Washington. Romero argues that his experiences in a country that denies them a path to citizenship has led him and other “dreamers” to the law. “It affects your life so much that you become obsessed with how to fix it.” Cinthia Padilla learned she lacked documentation, having come from México at just one years old, and her ambition is to fight crime. Padilla began law school at Loyola University in New Orleans and in between her studies she helplessly watched her father being deported back to México: “I came to law school trying to find answers for myself… the threats are very real to me.”

Challenges to the legality of DACA is a challenge to the representation that is needed to achieve justice for underrepresented populations. Diversity in a law firm is crucial to gaining client’s trust in handling legal matters. Familiarity allows clients to feel at ease when being represented by a lawyer who shares similar linguistic and cultural interests. Likewise, those who seek justice can trust that laws are made for the benefit of all through greater trust in American jurisprudence. Immigrants that are victims of crime are more fearful of the risks associated with seeking legal counsel in fear of deportation. Oftentimes, they are vulnerable to exploitation, falling victim to labor violations, such as labor trafficking and wage theft.

Immigrants have a hard time accessing resources, such as finding primary language aid and a reflection of shared cultural backgrounds in their attorneys. In conjunction, tensions between communities of color and law enforcement have historically raised racial profiling and hate crimes that go underserved by the American judicial system. Furthermore, law enforcement that cooperates with ICE customs further inhibits fear and discouragement to take steps towards achieving justice. Conservative outlets have constructed a narrative that immigrants are solely perpetrators of crime, further dividing the trust these individuals have in a constitution that promises the right to freedoms of all who reside in the nation. As a whole, these individuals rely on representation in litigation that only those who come from similar backgrounds can offer. 

The need for legislation in other states similar to New Mexico’s is crucial to increasing diversity in the country’s professional workforce and to combat the challenges that DACA is facing in circuit courts. However, changes to New Mexico’s Senate Bill 137 were met with scrutiny. State GOP chairman Steve Pearce stated: "This latest rule will open our borders even more, and the Court seems to relish making arbitrary decisions without thinking about consequences. This Court has gotten out of control, and it believes it can do whatever it wants.” The Republican party argues that the high court is operating outside its power, even with regard to the change’s overwhelming support during a public comment period, a period of time where the public has a chance to submit input before an agency makes a final decision on a proposed rule, by lawyers, advocacy groups, and law students.

Foreign-born residents are vital to New Mexico’s community labor forces. Ultimately, these individuals benefit the total population as employed business owners, taxpayers, and workers. In 2018, immigrant-led households contributed $393 million in state and local taxes while undocumented immigrants raised $40.5 million. Acting as consumers that benefit the health of our economy, immigrant-led households also put a strong $3.2 billion in spending power (after tax income). Thus, future litigation on matters concerning DACA raise the risk that one day “Dreamers” will not be able to provide economic stability for their immigrant families, and the pause on accepting new applications will hinder future generations from shaping the communities around them they call home. Other states should follow in the steps of New Mexico allowing individuals to practice law regardless of lawful status to ensure that their homes are inclusive, prosperous, and safe without fear of injustice for all. Overall, these individuals just want to give as much back to their communities as they have received, and challenges to DACA threatens an entire generation of young professionals seeking to represent people they call their own.

Luis Monroy (CC’25) is a staff writer currently majoring in Political-Science and hoping to attend law school in California. Born and raised in New Mexico, Luis hopes to go into criminal defense law and provide his services for those who stem from underrepresented communities. His biggest inspirations are his parents, whom his father immigrated to the United States from México, and hopes to make them proud by achieving justice for the Latinx community as an attorney.