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DACA Victory, But Questions Remain

On June 18, 2020, the Supreme Court of the United States issued a pivotal decision on Deferred Action for Childhood Arrivals (DACA).

Background on DACA Litigation

Since June 15, 2012, DACA has provided Dreamers (those brought to the United States as children before the age of 16) with prosecutorial discretion (non-enforcement of removal). At the end of 2019, there were almost 650,000 active DACA recipients.

Generally, to be considered for DACA as established in 2012, you:

  • Must have arrived in United States before the age of 16;
  • Were under age 31 as of June 15, 2012;
  • Have continuously resided in the United States since June 15, 2007 until present;
  • Were present in the United States on June 15, 2012 and are present at the time you apply;
  • Are a current student (or completed high school, have a GED, or are an honorably discharged veteran); and
  • Have not been convicted of any serious crimes and do not threaten public safety.

However, on September 5, 2017, under direction of former Attorney General Sessions, the Department of Homeland Security (DHS) announced the ending of DACA. New DACA applications stopped immediately.

In response, various parties challenged this cancellation of DACA in the federal courts. Those court cases allowed renewals of DACA to continue. Eventually, those cases led to the Supreme Court case, Department of Homeland Security v. Regents of the University of California, which was decided on June 18, 2020.

June 18, 2020 Supreme Court Decision

We celebrate this decision because it says DHS improperly cancelled DACA in 2017. While certainly a victory for Dreamers, it is important to understand the scope of this decision

First, the Court said the decision to end DACA was reviewable by the federal court (allowing them to hear the case). Second, the Court ruled the way DHS ended DACA was “arbitrary and capricious” under the Administrative Procedure Act. That is, the reasons DHS gave for ending the program were deficient. Finally, the Court affirmed a lower court decision, which vacated entirely the September 5, 2017 rescission of DACA and sent the matter back to the agency for consideration.

This means that DACA should go back to what it was in 2012. Problematically, the Supreme Court’s decision only says the procedure the agency followed was improper, and the Court agreed that DHS could end DACA if they were to do it properly. So, the question remains whether the agency will try to end DACA again sometime soon.

What does this mean for DACA recipients and qualified applicants?

  • I already have DACA, but I need to renew it.

Those who already have DACA may continue to submit renewal applications (along with the related work authorization applications).

  • I already have DACA, and I would like to apply for advance parole (Form I-131) so that I can travel outside the United States and then return.

It is possible that DHS will reinstate advance parole for DACA recipients following the Supreme Court’s decision on June 18, 2020. However, DHS has not done this yet, and there is still some work for the lower courts to do following this decision by the Supreme Court. We are closely monitoring so that we may quickly assist clients with these requests.

  • I qualify for DACA, but I never applied before, can I do so now?

This is considered an “initial DACA application.” Following the Supreme Court’s decision on June 18, 2020, we expect DHS to reinstate DACA as it was in 2012. This would mean initial DACA applications would be accepted. However, DHS has not done this yet, and there is still some work for the lower courts to do following this decision by the Supreme Court. We are closely monitoring so that we may quickly assist clients with these requests.

Could DHS still end DACA?

Yes, the Supreme Court’s Decision on June 18, 2020 did not decide whether DACA or its rescission were “sound policies.” Rather, the Court ruled the administration improperly ended DACA. Thus, it left the door open for the administration to end DACA in the future. In fact, the Trump administration and DHS have strongly admonished the decision.

Since there is still uncertainty about what will happen with DACA under the current administration, it is important to consult with an immigration attorney to properly assess the risks, benefits, and timing if you are considering DACA renewal, initial applications, or advance parole.

At David F. Vedder, P.A., we are Board-Certified in Immigration & Nationality Law, and we have handled more than 11,000 cases in our 40+ years of practice. We are adept at navigating new policies and regulations, and we can help you understand the implications the recent DACA decision may have on your case.

Citations:

Department of Homeland Security v. Regents of the University of California, 591 U. S. ____ (2020).

NAACP v. Trump, 298 F. Supp. 3d 209 (D.C. Cir. 2018)

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