Here's What Could Happen If DREAMers Lose DACA

April 29, 2013— -- In August 2012, the Obama administration started a program that allowed young undocumented immigrants to legally live and work in the U.S. on a temporary basis.

So far, more than 488,000 people have applied, and 268,361 have been granted a deportation reprieve under the program, called Deferred Action for Childhood Arrivals (DACA).

One of the biggest worries of applicants, however, is what might happen if the program ended. They might find out relatively soon.

A lawsuit challenging the legality of that program appears to be gaining traction.

See Also: Schumer and McCain See Huge Majority for Immigration Bill

The suit was filed by several parties, including Chris Crane, a union leader for federal immigration agents. It makes the case that the U.S. Department of Homeland Security (DHS) is breaking the law by choosing not to deport undocumented immigrants it deems a low priority. By low priority, we're talking about undocumented young people and immigrants with a clean criminal record and an established presence in the U.S.

The agents are being represented by Kansas Secretary of State Kris Kobach, who has helped draft state-level laws targeting undocumented immigrants, like Arizona's SB 1070.

The case is still in its early stages, so figuring out how the judge will rule means a little bit of guesswork. Educated guesswork, but still not certain.

Kobach says he's hopeful that the court will rule in his favor. But what that means for DREAMers all depends on which parts of the case the judge upholds, if any.

As Kobach sees it, certain aspects of the case could void DACA, and potentially lead to the deportation of undocumented immigrants participating in the program.

"I would hope that the law would be followed, and the law states very clearly that most of the individuals that are covered by DACA are to be placed in removal proceedings," he told ABC/Univision.

But David Leopold, general counsel for the American Immigration Lawyers Association, sees things much differently. He doesn't expect the program to stop.

First of all, Leopold has doubts that the lawsuit will be victorious. An order released earlier this week favored the plaintiff. But the judge, who presides over a federal district court in Texas, is still considering whether he has jurisdiction over the matter.

Even if the challenge is successful, Leopold thinks it will only mean some extra red tape for the people in the program and DHS.

A court order issued by the judge last week focuses on a particular aspect of the immigration process -- when an immigration agent determines that someone is in the country without authorization.

The focus on that one particular aspect shows that the judge considers that part of the case to have merit, but perhaps not the other parts of the case, Leopold said.

If that scenario plays out -- with the judge ruling favorably on this one aspect -- it won't be hard for DHS to find another way to administer DACA, Leopold said.

The department could just decide to give someone deferred action later in the immigration process. Yes, the ruling would force agents to detain someone they believed to be in the country illegally. But later stages of the process could be altered to keep DACA alive.

People in the program would likely have to go sign some papers, be placed in the custody of immigration authorities briefly — possibly minutes or hours, not days — but not have to appear before a judge, Leopold said.

The change wouldn't take effect right away, either. The government could ask for a delay in making the change, and could file an appeal. We're still in the early stages of the case.

The Obama administration strongly supports the program and believes DACA won't go away as a result of the lawsuit.

Peter Boogaard, a DHS spokesperson, the agency being sued, said that the department is "fully confident" that DACA will survive the legal challenge.

"As the Supreme Court made clear just last term, DHS has the authority to exercise prosecutorial discretion at all stages of the immigration process," he said, "and DACA is an appropriate exercise of that authority."

All of that should be good news for DREAMers, who took the risk of exposing their immigration status to enroll in the program. But even with the possibility of a favorable outcome, the uncertainty around the case could keep people from applying, according to Leopold.

"Does it scare DACA applicants? Of course it does," Leopold said. "And I think that's exactly what Mr. Kobach wants to do, and his client, Mr. Crane."

Kobach said the case is not a scare tactic, but has legitimate legal weight.

"The end goal is to require the administration to follow federal law," he told ABC/Univision. "There's been an attitude of lawlessness in some of the actions taken by the Napolitano DHS."

This story was updated at 11:22 a.m. to reflect Leopold's view that DACA participants wouldn't necessarily need to appear before a judge under his hypothetical post-ruling scenario.