On June 18, 2020, the U.S. Supreme Court in a 5-4 decision upheld the Deferred Action for Childhood Arrivals (“DACA”) program. For about 700,000 immigrants, often called Dreamers, and immigrant activists this was a sigh of relief and even a moment of joy. Writing for the majority, Chief Justice John Roberts, rejected Trump’s decision to end DACA. Although the court’s opinion was narrow, it was a strong rejection of the steps that Trump’s administration took to end DACA. In his decision, Roberts wrote, “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’” What the Supreme Court addressed was “whether the [Administration] complied with the procedural requirements that it provide a reasoned explanation for its action.” Finding that the Trump administration had not met the requirements, the Supreme Court found that the decision to rescind DACA was “arbitrary and capricious.”
What we must remember is that this decision left the door open for Trump to end DACA with a better explanation of his rationale. In fact, the day after the Supreme Court’s decision, Trump tweeted stating “The Supreme Court asked us to resubmit on DACA nothing was lost or won. … We will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court’s ruling & request of yesterday.” Therefore, we know that the Supreme Court’s decision only buys Dreamers time. Congress must act and pass immigration reform that puts DACA into law with a path to citizenship and hopefully fixes our broken immigration system. However, in an election year, this is highly unlikely, and Dreamers as well as millions of other undocumented immigrants must continue to wonder when action will be taken and live in a state of uncertainty and even fear. The impact that Trump’s decision has on LGBTQ+ Dreamers is dire, and that’s why I believe the LGBTQ+ community must queer the DREAM.
Recently, the University of Miami Race & Social Justice Law Review published my article titled “Queering the Dream — The Impact Trump’s Decision has on LGBTQ+ Dreamers”. In the article, I discuss the historical context of DACA and its creation. Then I analyze the country conditions of the top eight home countries of DACA recipients (Mexico, El Salvador, Guatemala, Honduras, Peru, the Philippines, Columbia and the Dominican Republic), which allows me to demonstrate the risks that LGBTQ+ individuals face if they are deported back to their home countries. I also explain the forms of relief available if someone were to fall out of DACA status. I compare the experiences of LGBTQ+ individuals to their heterosexual counterparts to demonstrate the unique experiences that LGBTQ+ DACA recipients face. If LGBTQ+ DACA recipients are deported back to their home countries where few protections are in place, or if in place lack enforcement, they will face discrimination, beatings, and possible exile.
As a Latino gay male, who was undocumented for 27 years of my life, I empathize with undocumented immigrants, including DACA recipients as we must remember that DACA recipients continue to be undocumented. When I was two years old, my mother decided to immigrate to the land of opportunities to give me a better life. She believed in the American Dream. I was enrolled in school and pushed to become the best I could. One day I came home and told my mother that we had discussed career paths in school and that I had decided that I wanted to be a lawyer. I saw tears in her eyes. I asked her what was wrong. She said, “Hijo sientate, nunca dejes que nadie te diga que no puedes alcanzar tus sueños. Sin embargo…” (Son, sit down, never let anyone tell you that you cannot achieve your dreams. However…”).
At that moment, my mother began to tell me about my undocumented status and that it would be hard, almost impossible, for me to go to a university. All these limitations were new to me. I knew I was born in Mexico, but I had no clue that I was different from my peers. I had dreams just like they did, and although my mother told me that I should not let anyone discourage me, it felt like my goals were unachievable.
Fast forward several years. After graduating from the University of Utah, I was forced to take six years off because of my undocumented status. Without federal financial aid, my dream of going to law school was hindered. During this time, I received DACA status. However, even then, DACA status did not allow me to apply for federal financial aid. About three years later, I was able to adjust my legal status to permanent resident. It was at that point that I began preparing to go to law school. Today, I am grateful to say that after graduating from the University of Miami School of Law in 2019, I am an attorney with a global law firm in Charlotte today.
I tell my story to remind other Dreamers, that you can put your dreams on pause, so long as you don’t stop dreaming. For now, let us work together to push Congress to act so that others can achieve their dreams.
Candelario Saldana, Esq. is an associate with Cadwalader, Wickersham & Taft LLP and is a board member for the National LGBTQ Task Force.