Can Colorado Create a State DACA?

The Weekly Issue/El Semanario Advisory Board

If DACA has been legally wounded, can Colorado heal it at least for our residents? The situation with DACA/Deferred Action for Childhood Arrivals is currently grim nationally, with little hope of external recovery if left to bide its own time. Colorado’s young residents who in previous years could have planned on applying for and receiving DACA certification are now prohibited from its attendant safeguards, albeit current recipients as of July 16, 2021 may retain it “temporarily,” as we explain below. The Weekly Issue/El Semanario Advisory Board therefore urges a new path, for Denver and Colorado to develop its own Colorado DACA to protect our youth.

The challenges facing our young undocumented Denver and Colorado residents are numerous, but surmountable. The current definition of DACA rests on two ideas: 1) deferred action, meaning deferring, or setting aside, or suspending a certain action, in this case deportation or other negative legal action; and 2), for childhood arrivals, referring to young children who at approximately seven years of age arrived in Colorado, an age at which it is impossible for them to break any law. Put those together—D+A+C+A—and we have the program that for so many in our state has spelled a degree of faith that they will be treated with some degree of respect and propriety normally afforded children.

The Weekly Issue/El Semanario requests of our readers their thoughts and recommendations about our call for at least a Denver and Colorado DACA, along with as many other cities in our state that would join with us in this effort. Our children should expect no less from us.

A comprehensive explanation of DACA is beyond the scope of this current article, but El Semanario will provide forthcoming updates. For now, what has become of DACA can be readily outlined. In 2012, President Barrack Obama created the program with a Presidential Executive Order, with then-Secretary of Homeland Security Janet Napolitano drafting the configurations of DACA, including the essential “prosecutorial discretion” especially of deportation, or its euphemism, “removal.” It came with several requirements, including arrival in the U.S. before the age of 16, continual residence since June 15, 2007, and “currently in school, have graduated or obtained a GED certificate, or that they have been honorably discharged from the military,” among others (National Immigration Forum, Fact Sheet: Deferred Action for Childhood Arrivals (DACA)).

The fault line in DACA appeared on July 16, 2021, necessitating El Semanario to appeal to our readers to join with us in attempting to establish a Colorado DACA. It had faced near-constant opposition from its political and legal forces, but with successful preservation efforts from its supporters. But on July 16, 2021, U. S. District Judge Andrew S. Hanen in Texas ruled against DACA, specifically forbidding any new applicants from being granted DACA certification and its attendant protections. The case against it had been brought by Texas and eight other amici states, or “Friends of the Court.”

As members of El Semanario’s Advisory Board have explained elsewhere, the signatories stated in that lawsuit:

The Plaintiff States argue… that the Deferred Action for Childhood Arrivals (DACA) program is illegal because its creation violated, and its continued existence violates, the procedural and substantive aspect of the Administrative Procedure Act (APA)” as well as the “Take Care Clause” of the U.S. Constitution (page 2).

The Plaintiffs, Texas Et. Al., argued against DACA certification for children who “came to the United States under the age of sixteen,” and “honorably discharged veteran of the Coast Guard or Armed Forces of the United States,” and all other DACA recipients who fulfilled the original requirements as of its 2012 establishment. We note especially the dictate against “honorably discharged veteran[s],” allowed previously in DACA, but now rescinded for those now denied the right to apply. Therefore, since July 16, 2021, for the last 2 years and 4 months, no new DACA eligible individuals have been able to apply to become DACA recipients, including Military veterans.

We add that those who had received DACA as of July 16, 2021, have been allowed to maintain it, with the requirement, as formerly, that they reapply every two years; as Judge Hanen wrote in his decision, they may retain such coverage “temporarily” pending further decisions by him or another Federal judge or the U.S. Supreme Court.

According to the college and university Presidents’ Alliance on Higher Education and Immigration, as of November 7, 2022, in “DACA and Dreamers: What You Need to Know,” “Over the last decade, DACA has protected more than 830,000 individuals” nationally, allowing them to work, attend school, and in other ways establish a modicum of security. As of June 2022, it was estimated that there were 594,120 DACA recipients in the U.S., of which 13,180 were in Colorado, highlighting the need for a continuation of the national DACA or at least a Colorado alternative. “An additional 8,230 Coloradans were estimated to be eligible for DACA in 2022, according to the Migration Policy Institute, but they are blocked from seeking the program’s protections as U.S. Citizenship and Immigration Services is no longer accepting new applications” (“We’re scared”: 13,000+ DACA recipients living in Colorado…”, July 23, 2023, The Denver Post). That number of “eligible for DACA” will continue to grow as each new class of students reach 11^th and 12^th grades, the age of previous eligibility, but now forbidden. Creating a Colorado DACA would therefore serve as a step in improving educational attainment for our children as they get closer to high school graduation.

Remembering that the original 2012 DACA was a Presidential Executive Order by President Obama, The Weekly Issue/El Semanario recommends to at least Denver Mayor Michael Johnston and Colorado Governor Jared Polis to issue, respectively, Denver and Colorado Executive Orders creating a DACA program, individually or jointly, providing similar protections as the national DACA does for current recipients. While this may be an extraordinary request, we remind our readers that previous Mayors and Governors have issued numerous far-reaching Executive Orders (EO). For example, all of Colorado lived through the COVID pandemic, with numerous attendant EO’s by both offices, affecting our daily lives.

Both Denver Mayors and Colorado Governors have likewise issued EO’s on behalf of immigrants. In 2017, Mayor Hancock issued a compelling Executive Order No. 142 : “Standing with Immigrants and Refugees: A Safe and Welcoming City”.

In 2018, then-Governor John Hickenlooper issued an EO about immigrant children, “B 2018 008 Executive Order.” It forbade Colorado state agencies from “Using State Resources to Separate Children from Their Parents or Legal Guardians on the Sole Ground of Immigration Status”.

Mayor Johnston and Governor Polis could issue EO’s establishing a city and state DACA program, providing protection from deportation, as well as eligibility for a work permit, to the extent possible. They have the resources of the Colorado Attorney General’s Office to work with the Office of the United States Attorney for the District of Colorado to ensure prosecutorial discretion for Colorado DACA recipients.

Finally, we realize that many would argue that immigration is a Federal matter, not open to state policies. Briefly, we reply that possession and use of marijuana is also a Federal matter, as it is considered a Schedule 1 substance, illegal under federal law according to the Controlled Substance Act of 1970 (https://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf page 12, Marihuana 7360). And yet, Colorado has provided “deferred,” or no, action for adult marijuana users. Along with the reversal on marijuana use in Colorado, and the overturning of Roe vs. Wade along with Affirmative Action—all three of which were considered Federal matters—Colorado can certainly provide such protection through a “deferred action” program for our young people, brought here, to remind ourselves, at an average age of 7, not the average age of, say, 21 for marijuana users, who enjoy Colorado’s protections and “prosecutorial discretion.”

The Weekly Issue/El Semanario requests of our readers their thoughts and recommendations about our call for at least a Denver and Colorado DACA, along with as many other cities in our state that would join with us in this effort. Our children should expect no less from us.

The Weekly Issue/El Semanario Advisory Board: Luis Torres, Ph.D.; Ramón Del Castillo, Ph.D.; Steve Del Castillo, Ph.D.; Daniel Stange; Nicki Gonzales, PhD; and Manuel “Manny” Almaguer.