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Immigration Attorney Jim Hacking Talks DACA Ruling with KTRS Radio

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Ray Hartmann:
Joining us now as promised is Jim Hacking. He is one of our towns, preeminent immigration attorneys. He is the proprietor of the Hacking Immigration Law and immigration law is all that you do. Is that correct?

Jim Hacking:
Yeah, we stopped doing anything else about 10 years ago. And so now all we do is immigration.

Ray Hartmann:
I asked you to join us tonight, Jim, because of your expertise. When the U.S. Supreme court ruled earlier today that the Trump administration may not immediately proceed with its planned to end the program known as DACA.

Tell us, first of all, and put it in the right language for people like myself. Explain what the DACA program deferred action for childhood arrivals is?

Jim Hacking:
So back in the early part of the Obama administration, there was a gang of eight senators. They called them the gang of eight. There were four Democrats and four Republicans who had a comprehensive immigration reform.

It passed the Senate easily on a, on a bipartisan basis. It wasn't just a party line and it got to the house and, uh, the leadership of the house and specifically Steve King, that anti-immigrant fellow from Iowa who just lost the primary vote.

They refuse to let that bill go to the floor. Frustrated with these hardliners, and the refusal to allow any kind of immigration reform to even reach a full vote in the house, President Obama and some really smart people at the Department of Homeland Security, including our towns own, Steve Legomsky who worked at Washington U and actually wrote the textbook on immigration.

They came up with the deferred action for childhood arrival program.

That's a law or regulation or a whole regulatory scheme that changed the way the Department of Homeland Security prioritized deportations.

They said we have limited resources. We can't deport everybody. So we are going to focus on people who have committed crimes or repeatedly violated our immigration laws. And we're going to, de-emphasize deporting young people who came to the United States during a certain time period at a certain age, and who have been here and have followed the law and never been arrested.

So these are the "good residents". And we're going to not only stop their deportation, we're also going to give them the ability to obtain work authorization, which allowed them to get a social security card.

And it allowed these children of immigrants who entered without inspection to really come out of the shadows. This has been on the books for over 10 years now.

And so many, many, many of these young immigrants have really taken the opportunity presented by DACA and really have gone to graduate school.

We have doctors, there are doctors that were fighting COVID-19 who were DACA recipients. There are lawyers who are DACA recipients, there's all kinds of people who've really been able to find some footing in the United States in a way that they were never able to before DACA.

Ray Hartmann:
And it affects reportedly 700,000 people nationally at this time. Is that sound about right? That's what the New York times reported, how many DACA recipients, or "dreamers" do you think we have in St. Louis?

Jim Hacking:
I would say probably, you know, between 5,000 and 8,000.

Ray Hartmann:

Jim Hacking:
In Missouri, I would say in Missouri.

Ray Hartmann:
And some of them I suspect are with families who you represent or have represented?

Jim Hacking:
Yeah. We have a fair number of DACA recipients.

It's been a great protection for people, it's given them great peace of mind. We've been able to help some families.

There were some maneuvers that we could do when DACA was fully in place and that we were actually able to get people into actual status on the path to green cards.

The thing about DACA is it's a bandaid on a really big problem. It's not a true solution.

You know, you and I have talked in the past about what's happened to the immigration reform really looks like, and this is not that. This is just sort of a stop gap measure that allows these people to catch their breath, to move forward with their lives. But it's not a path toward citizenship.

It's just a temporary thing.

A temporary fix that we've always said could be taken away by another president.

In fact, there were a lot of immigration lawyers when DACA came out who were rightfully suspicious of the department of Homeland security and said, "look, you never know who's going to be president after Obama. And you might have someone you're handing us or handing Homeland security and ICE, all the data about your clients. And they could turn that data around and use it as an enforcement tool if they struck down DACA." Which is what they tried to do.

Ray Hartmann:
Well, and you indicated it's a temporary program.

Today's ruling was a temporary setback to Donald Trump who wants to get rid of this temporary program.

He announced in 2017, as part of his very xenophobic campaign that he won with in 2016, that he was going to end DACA.

DACA has traditionally been favorably viewed by the American public. The most recent poll taken from the New York times shows that today 61% of Americans think that the DACA program should remain and only 39% they get should be ended.

Republicans do favor ending it, but only by a 70 to 30 margin, which means almost a third of Donald Trump's own party supports DACA. Let me ask you how temporary is this victory and should those who support DACA be celebrating it?

Jim Hacking:
Oh, they should definitely be celebrating.

I mean, I think everybody thought that this was going to be a big loss for those who support immigrant rights. I think that the opinion itself is interesting.

I know you and I were talking earlier today about how you enjoy reading opinions and this opinion written by chief justice Roberts. Who's for all intents and purposes, the swing vote on the Supreme court, starts off by saying, there's no dispute that the president can dismantle DACA, that the president and Homeland security can configure the enforcement provisions, any which way that they want.

And if they want to send them back to the way that they were before DACA or that they want to say, we're going to deport everybody that we can. The Supreme court leads off its decision by saying, there's no dispute that the president can do that.

But the majority opinion goes on to say they didn't do it the right way. They didn't follow the administrative procedures act, which is a federal law that governs all administrative agencies. And there were a lot of defects in the way that they undid or attempted to undo DACA. And so that's sort of where we stand today. Now you are asking, is this something that should be celebrated? Absolutely. Because it's going to take them a while to try to undo the regulations.

Ray Hartmann:
Well, that was my next question. How long will it take, longer than November, for example, for the Trump administration to end the DACA program, would you say?

Jim Hacking:
I think they'll try again and they'll try to be much more declarative and why they're terminating it.

They'll I would imagine try to follow the rules required by the administrative procedures act to lay out why they're doing it and what specifically they're trying to undo.

It was sort of a broad, broad ranging opinion, sort of talking about the actual effects of DACA and how it's helped people and how we're now 10 years in on it.

And he really went to some places that I wouldn't have expected justice Roberts to go, but in order for them to undo it, they're going to have to follow the administrative procedures act.

They're going to probably have to put it out for notice and comment, which means they're gonna have to publish a new proposed rule. They're going to have to wait for people to respond. Now they've been condensing that time should to try to do it in 30 days, but I would imagine that whenever they're done with that it's going to be tied up in litigation. Again, there'll be lawsuits and pro immigrant jurisdictions. I think that will then get them going.

Ray Hartmann:
We're speaking with Jim Hacking. He's one of the top immigration lawyers in St. Louis. In fact, that's all he does. We need to take a quick break, but when we get back with Jim, I want to talk to him a little more about specifics about this case, and also a little more specific definition of who these people are in DACA and what the restrictions and the requirements are to be part of the DACA program.

We're back with immigration attorney Jim Hacking.

Jim in the decision today, the 5-4 decision in which chief justice John Roberts was the deciding vote and authored the opinion. He used the phrase :arbitrary and capricious" that would lead one to believe that this was not some minor technicality that the Trump administration had failed to comply with. And rather that it would be a bit of a heavy lift for them to come back shortly with a different fix that would satisfy the court.

Jim Hacking:
There's a long play by play of whatever happened when the department of Homeland security announced that it was going to terminate DACA, but basically attorney general at the time Jeff Sessions said that DACA is illegal.

And the Layne Duke who is the head of Homeland security said DACA is illegal, but they put forth no justification for why it was illegal, no explanation as to why they were doing away with the program.

And chief justice dinged them for two things: saying that they had not looked at how the recipients had come to rely on DACA, and they also failed to consider the possibility of the deffering deportations, even if other benefits like the right to work were eliminated.

So in other words, the court found that the decision was arbitrary and capricious, and that's a legal term of art.

That's something that comes directly out of the administrative procedures act, which basically says that any government agency has to follow the law and has to have rational reasons for the decisions that they make and they can't just do it by the seat of their pants, which I think is what the fundamental problem was.

So I think you can expect a more detailed explanation as to why DACA is "illegal" and why they think it should be dismantled. So once that happens, then I think we'll see the litigation. That'll probably pause us at least until after the election.

Ray Hartmann:
Let me read you first when Donald Trump said and he was talking about this and another decision, "these horrible and politically charged decisions coming of the Supreme court are shotgun blasts into the face of people who are proud to call themselves Republicans or conservatives". And he went on to say that the Supreme court didn't like him.  For our case that seems based on procedure where justice Roberts assured him, that he did in fact, have the power to do this. He decided to not do it the right way.

That reaction was pretty strong. Does that indicate to you that his folks let him know that he'd have to get reelected to make this happen?

Jim Hacking:
Yeah. The squealing on the right has been fun to enjoy today.

I mean, we all anticipated that's squealing to be coming from us.

So to have a Republican write the decision, and this was a Republican who just sat through the impeachment trial of Donald Trump and who has chastised Donald Trump for some of his, attacks on the federal judiciary.

I think that it's interesting to see how one person can change the course of the lives of all of these DACA recipients. It's really, it's really remarkable. And it's really a great thing about our country.

Ray Hartmann:
I want to read you also what justice Clarence Thomas said, he said, "today's decision must be recognized for what it is and effort to avoid a politically controversial, but legally correct decision". He's talking about the decision by Donald Trump to end the DACA program.

"The court could have made clear that the solution respondent seek must come from the legislative branch", meaning he's saying to DACA immigrants, that they are the ones that needed to go to Congress.

Donald Trump's entire argument, all along politically has been, "Oh, I love children. I love children, but I've just got to follow the constitution here". And, and, you know, he made it all about the courts and he wasn't expecting this roadblock from his Supreme court. Am I correct?

Jim Hacking:
Absolutely. Correct. I think he's had a rough week and I think that they're feeling a little singed on the right right now. Absolutely.

Ray Hartmann:
We talked earlier about the DACA program. I was looking, the requirements to be in DACA are fairly strict. Are they not?

Jim Hacking:
Yeah. It was a certain time period from like 2007 to 2012. You had to have been here. You had to be within a certain age category. You had to have only entered the United States one time, and that age category would have required that you were basically a child at the time that you arrived. And then you can't have committed any crimes.

Ray Hartmann:
Correct? You need to have not committed crimes, you had to be here before you turned 16, no older than 30, had lived in the U.S. for at least five years, were in school at graduated from high school, received a GED and, or were an honorably discharged veteran.

That last part got my attention. Because we're talking about, in some cases about people who actually served our country in the military, correct?

Jim Hacking:
Yeah. And you know, Ray, I remember when DACA first came out and I remember some conversations that I've had with people.

I've obviously, as an immigration lawyer, we have a lot of hard conversations with people. Some people are facing deportation.

Some people are finding out that they can't become a citizen or whatever, but the hardest conversations I've had are situations where these young people would come into my office and they would be there with their parents. This was before DACA, and the tears in their eyes and the sadness.

When I, sometimes I was meeting with them the day or two, after they found out that they weren't U.S. citizens. So these are kids who grew up in America. They thought they were American.

And then it became time to apply for college or whatever, they were finding out that they were not able to be treated like everybody else that they weren't like everybody else.

And that they were facing possible deportation, that when DACA came out, it was a true lifeline for these kids. And so, you know, the joy of these kids today of these people, who've been here for years now, following the law, doing everything that they can and who came here through no fault of their own, those are the DACA kids.

And like I said earlier, they've made tremendous contributions to our society. As all immigrants do to our society.

Ray Hartmann:
Jim hacking immigration attorney, who has been nice enough to spend part of his Thursday evening with us, let me ask you, what's the next step.

Now that DACA beneficiaries have this temporary reprieve, what's the next step for them?

If one of them is your client. Do you put them on a faster track? Is there any way for you to get them on a faster track to citizenship or not?

Jim Hacking:
Well again, DACA is not a path to citizenship. DACA is not a longterm fix. DACA is only a temporary fix that has halted deportations for as long as the department of Homeland security allows that to occur.

Ray Hartmann:
So what has to happen?

Jim Hacking:
Yeah, there has to be comprehensive immigration reform.

So as we've talked before, and that's going to that as justice Thomas said, that is something that's going to have to come through Congress in order for there to be changes in the law for these undocumented immigrants or for all undocumented immigrants, there's going to have to be legislation that's passed.

That's signed by a president in order for there to be any kind of waiting line or path to citizenship for these kids. And for everybody else, who's here without status.

Ray Hartmann:
Do you have any theory about why this has been so impossible to do for Congress? In fairness, it was before Trump as well.

I know you've mentioned the heinous Steve King, having stood in the proverbial schoolhouse doors on this in a previous administration, a previous Congress, but this is something where a substantial percentage of Americans across party lines agree that a young person who hasn't broken any rules, as you say, was not here through any fault of their own, who thinks of themselves and acts and feels like an American might have even served in our military.

This isn't, you know, a question of amnesty for millions of people or talking about 700,000 young people. Why is this so hard to get done?

Jim Hacking:
I think that Congress gets tied up with other things.

They don't make it a priority. I think the Democrats have their own immigration history that they have to face up to, president Obama deported plenty of people.

And president Clinton signed the, a lot of the legislation that makes life for immigrants in America so hard right now.

I think it's one of those political footballs like Israel and Palestine, and abortion, that politicians use as a way to gin up support for their re-elections.

But then when they settle into their new offices in DC, they sort of forget about immigrants.

A lot of times, they're not the most financially well-healed lobbying groups.

And so I think that it becomes easy for a lot of members of Congress to ignore them. And then of course, there's also these hurdles where people like Steve King or,  one Senator, you can't get past the filibuster that makes it just the logistics of legislation make it hard.

And I also think that neither party wants to give a president the victory of immigration reform with the thought that those people who become citizens will then be supporting that political party.

Ray Hartmann:
That's a really interesting point.

And we've come in this polarized world, certainly the democratic side thinks of themselves now as the party supporting immigrants and brown people, however you want to term it.

And the Republicans are the enemy, but you raised an interesting point that the Democrats have not been necessarily the best friends of the immigrant community when they've been in power. Why do you think that's the case?

Jim Hacking:

I think it was taken for granted and they say well, at least we're not as bad as you know, Republicans. We're not, we're not gonna be out there beating the bushes to deport you, but at the same time, we're not going to stick our necks out there.

It's hard to get political support for people who aren't already us voters. They're always going to take a back seat to us, citizens and Democrats have historically just been a little bit scared.

I mean, we have certainly heroes in the democratic guys, like Dick Durbin from Illinois who have really gone to bat for immigrants. But at the same time, you have a lot of people who just don't get that fired up over it.

Ray Hartmann:
Jim hacking immigration attorney really appreciate you spending so much time with us tonight and you stay safe and well, and I'm sure we'll be talking again.

Jim Hacking:
Thanks Ray. Have a good night. Thank you.

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