U.S. Supreme Court upholds DACA

BY Jason Gerrol

On June 18, 2020, the U.S. Supreme Court issued a major victory for "Dreamers" and supporters of the Deferred Action for Childhood Arrivals (DACA) program, finding the Trump administration's decision to terminate DACA was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The decision effectively allows DACA recipients to remain safe from deportation, albeit perhaps temporarily, as the Trump administration and the Department of Homeland Security (DHS) review options regarding the future of the DACA program.

DACA was announced in June 2012 by President Obama and DHS, and provides protection from removal (deferred action) and employment authorization to eligible unauthorized immigrants who came to the U.S. as children with their parents or guardians, also known as "Dreamers." The program was created by executive action after Congress failed to enact the Dream Act and afford such children with lawful status. Approximately 700,000 "Dreamers" have applied for and received DACA protection and benefits.

On September 5, 2017, the Trump administration announced the termination of the DACA program, claiming the program was unlawful and citing an earlier decision striking down a similar program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The decision to end DACA, however, was quickly met with legal challenges, and on November 8, 2018, the Ninth Circuit Court of Appeals upheld a lower court ruling requiring DHS to continue accepting DACA renewal requests from individuals previously granted DACA status. Similar orders were issued by the Second and D.C. Circuit courts, resulting in final review by the U.S. Supreme Court.

In a 5–4 decision, the U.S. Supreme Court held that the decision to terminate DACA was arbitrary and capricious in violation of the APA for (1) failure to provide an adequate explanation for why the DACA program was unlawful and had to be terminated; and (2) failure to consider the "reliance interests" of DACA recipients, or in other words, the fact that many DACA recipients have enrolled in degree programs, started businesses, purchased homes, etc., in reliance on DACA. While DHS "may determine ... that other interests and policy concerns outweigh any reliance interests," DHS nevertheless failed to perform that analysis in violation of the APA.

The Court was careful to distinguish their earlier decision regarding DAPA, which was challenged on the basis not of its deferred action provisions, but on extending benefits to a class of unauthorized immigrants in violation of the Immigration and Nationality Act, and therefore "foreclosed by Congress's careful plan." DACA also extends benefits to a class of unauthorized immigrants, but according to the Court, "[e]ven if it is illegal for DHS to extend work authorization and other benefits to DACA recipients," that conclusion does not cast doubt on the legality of DACA's deferred action provisions, and does not support terminating the entire DACA program without adequate explanation for doing so.

While the decision is an important victory for Dreamers, the future of DACA nevertheless remains in doubt. Congress has not been able to pass any meaningful immigration legislation in years, and it is possible the Trump administration may revisit their decision to terminate DACA by attempting to remedy the APA deficiencies identified by the Court.

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Jason Gerrol

Of Counsel

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