SCOTUS Upholds DACA, Giving Temporary Victory to Many Undocumented Immigrants

In a landmark decision today, the Supreme Court of the United States narrowly threw a lifeline to the Deferred Action for Childhood Arrivals (DACA) program by holding that the Trump administration sought to end the program in an arbitrary and capricious manner.

For now, DACA lives. However, the Supreme Court decision did not say that DACA is legal or that the Department of Homeland Security (DHS) had to keep the program. The Chief Justice Roberts opinion merely states that in order to get rid of the program, the DHS has to follow proper rule-making procedures under the Administrative Procedures Act (APA).

Instead of following proper rule-making procedures when it came to rescinding DACA, the former Attorney General, Jeff Sessions, acting under the auspices of the Trump administration, just woke up one day and declared the program was illegal without any notice or comment and directed DHS to wind it down. DHS then proceeded to publish a memo rescinding the program.

Writing for the slim 5-4 majority, Chief Justice Roberts remanded the case back to the lower courts and the Department of Homeland Security (DHS) for further proceedings consistent with the opinion.

It is very likely the the next move by the Administration is to publish a notice in the Federal Register seeking to rescind the program. Traditionally, APA notice and comment procedures to rescind a program can take several months and even a year.

In the meantime, the decision does mean that those who never before applied for DACA but are eligible under the guidelines of the original program would get a narrow window of opportunity to apply before the program is eventually rescinded. There are many undocumented youth who never applied, or aged into the program when they turned 15. Those who find themselves newly eligible should start gathering paperwork in anticipation of USCIS reopening the program.

The decision should also restore advance parole for DACA applicants. Advance parole allows certain DACA recipients to travel abroad for employment, educational and humanitarian reasons, and return to the United States. Upon gaining this lawful entry, DACA recipients are often able to adjust their status through their U.S. citizen relatives.

We have to await further guidelines from USCIS on when they will start accepting initial applications and advance parole applications but do share this important news with those who are impacted.

It has been eight years since immigrant youth fought hard to get the Obama administration to create DACA, which has allowed over 700,000 non-citizens who came to the United States as children to apply for protection from deportation, and gain temporary work permits. The program has its limitations and it was always meant to be a temporary stop-gap measure until Congress could pass permanent legislation, but it has allowed many recipients to gain an education, visit family members they had not seen in years, start careers in the United States, buy homes, and live almost complete lives in the only country they know as home.

As such, we take time to rejoice today. And tomorrow, we get ready for the next fight.

Photo Credit: Molly Adams

In response to the COVID-19 pandemic, Lal Legal and our staff has instituted remote work from home policies until further notice. All appointments and consults will be held via phone and/or video conferencing. Thank you for understanding!

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