Supreme Court Allows DACA to Remain in Place for Now

The issue

In a long-awaited decision, the U.S. Supreme Court today held that the Trump Administration failed to provide an adequate justification for terminating the Deferred Action for Childhood Arrivals (DACA) program, thus violating the Administrative Procedure Act (APA). DACA remains in place for now, but the Trump Administration could renew its efforts to terminate the program.

In today’s decision, the Court did not rule on the legality of the DACA program as a whole, only on the manner in which the Administration tried to dismantle it. Though the Court held that the Department of Homeland Security’s decision to terminate DACA was arbitrary and capricious, the decision makes clear that the Department of Homeland Security has the authority to rescind the program, provided it follows proper administrative procedure.

The case is in Department of Homeland Security et al. v. Regents of the University of California et al.

Background

Created in 2012, the Deferred Action for Childhood Arrivals program offered deportation relief and employment authorization to certain undocumented immigrants brought to the country as children, also known as Dreamers.  

The Trump Administration announced its intention to terminate the DACA program in September 2017, but provided a six-month delay in order to give Congress time to develop a legislative solution. Congress failed to take action, and in the meantime, several lawsuits were brought challenging termination of the program. Pursuant to several federal court orders, USCIS was compelled to continue processing DACA renewal applications, including employment authorization documents (EADs), but was permitted to refuse new applications for DACA protection as well as applications for advance travel authorization – known as advance parole – from DACA beneficiaries. Today’s decision concludes the consolidated review of three of the lawsuits challenging DACA’s termination.

What today’s ruling means for DACA beneficiaries and the DACA-eligible

Though DHS could take future action to terminate DACA, today’s decision leaves the program in place for now. 

Current DACA beneficiaries may continue to rely on their valid employment authorization documents and continue to receive protection from deportation until further notice. Those with expiring EADs should submit their renewal applications as soon as they are eligible to do so. 

The impact of the decision is less clear on those who are eligible for DACA but have not been able to apply for benefits. The Supreme Court found that the memoranda rescinding DACA were unlawful, which suggests that U.S. Citizenship and Immigration Services should accept new applications for DACA benefits, as well as applications for advance travel authorization (advance parole) from DACA beneficiaries. It is not yet known, however, how DHS would treat such applications or whether lower courts might permit DHS’s continued refusal to take these applications. 

Foreign nationals who wish to apply for initial DACA benefits and current DACA beneficiaries who seek permission to travel abroad should seek advice from immigration counsel.  

What’s next for the DACA program

The ultimate fate of the DACA program remains unclear. The Supreme Court decision does not prevent DHS from conducting a more rigorous rescission review and process in order to terminate the program at any time. If DHS does so, the DACA program may be deemed to have been legally terminated in a future judicial review. 

Legislative solutions for Dreamers have long been proposed in Congress. In 2019, the most recent of these bills, American Dream and Promise Act, passed the House of Representatives, but was not taken up by the Senate and did not have the support of the White House. Today’s decision could spur renewed consideration of legislative relief for Dreamers. 

This alert is for information purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.