Supreme Court Upholds DACA


by Diana Morales McFarland

dmoralesmcfarland@mcgrathnorth.com
(402) 341-3070

On June 18, 2020, the Supreme Court ruled against the government’s attempt to end the DACA program and remanded the case for further consideration. This was a long-awaited decision that came after years of complex litigation. In a 5-4 decision, the Supreme Court found that the administration’s attempt to terminate DACA was unlawful. The Supreme Court held that the decision by the Department of Homeland Security (DHS) to terminate DACA was reviewable in federal court and also “arbitrary and capricious” under the Administrative Procedure Act (APA). On the merits, the Supreme Court reasoned that the “agency must defend its actions based on the reasons it gave when it acted” and further that DHS failed to consider “reliance” interests such as a broader renewal period for DACA recipients or a more accommodating termination date. The Supreme Court stated that while DHS was not required to consider all of the policy alternatives, “it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” The Supreme Court’s decision will allow hundreds of thousands of young people in the United States to temporarily keep work authorization and have protection from deportation. The Supreme Court emphasized that the Trump administration can still end DACA, but it must go through the proper process to do so.

History of DACA

On June 15, 2012, then Secretary of Homeland Security Janet Napolitano created Deferred Action for Childhood Arrivals (DACA). The policy enabled people who came to the United States before the age of 16 to apply for “deferred action,” a form of prosecutorial discretion providing temporary relief from deportation, and work authorization. DACA has enabled over 700,000 eligible young adults to work lawfully and attend school without the constant threat of deportation. DACA is only a temporary protection that must be renewed every two years. It does not provide permanent protection.

On September 5, 2017, then Acting Secretary of Homeland Security Elaine Duke rescinded the 2012 DACA memorandum and announced a “wind down” of DACA. No new applications for DACA would be accepted. DACA beneficiaries whose status was to expire before March 5, 2018, were permitted to renew their status for an additional two years if they applied by October 5, 2017. Any person for whom DACA would have expired as of March 6, 2018, would no longer have deferred action or work authorization.

On January 9, 2018, a federal judge in California blocked the Trump administration’s termination of DACA and continued to allow renewal requests. Similarly, on February 13, 2018, a federal judge in New York issued a preliminary injunction preventing the administration from abruptly ending the DACA program. As of August 2019, individuals with DACA or those who had DACA in the past were able to renew their benefits on a two-year basis. However, first-time applications would no longer being accepted.

What does the Supreme Court decision mean?

Does the Supreme Court’s decision mean DACA can never end?

No. The decision is limited to how the DHS ended DACA in 2017. Specifically, the Supreme Court found that DHS failed to provide a reasonable explanation for ending DACA. How and if DHS chooses to proceed in the future remains to be seen.

Did the Supreme Court make a decision about whether DACA is lawful?

No. The Supreme Court did not decide if DACA is lawful. The decision is limited to “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

Can initial DACA applications be filed?

The Supreme Court’s decision signifies that DACA should be fully reinstated, which means eligible individuals who never had DACA should be able to apply at this time. DHS will need to reopen the DACA policy for new requests consistent with the Supreme Court’s decision. However, this may not happen immediately.

Can DACA renewals be filed?

Yes. Eligible DACA recipients can continue to apply to renew their DACA for two more years.

Can applications for Advance Parole that allow individuals to return to the U.S. after traveling abroad be filed?

The Supreme Court’s conclusion that DACA was terminated unlawfully means that Advance Parole should be reinstated. DHS will need to reopen the DACA policy for Advance Parole requests consistent with the Supreme Court’s decision. However, this may not happen immediately. Given uncertainty surrounding DHS plans, and also given the state of travel due to COVID-19, individuals should carefully consider applying for Advance Parole until DHS weighs in on the issue.

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